Phillips 66 S-4, filed Feb 22, 2023
Phillips 66 (PSX)
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As filed with the Securities and Exchange Commission on February 22, 2023
Registration No. 333-
333- -01
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Phillips 66 Company
Phillips 66
(Exact name of registrant as specified in its charter)
| Delaware | 2911 | 37-1652702 | ||
| Delaware | 2911 | 45-3779385 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Numbers) |
(I.R.S. Employer Identification Number) |
2331 CityWest Blvd.
Houston, Texas 77042
(832) 765-3010
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Vanessa Allen Sutherland
Executive Vice President, Government Affairs, General Counsel and Corporate Secretary
2331 CityWest Blvd.
Houston, Texas 77042
(832) 765-3010
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
William S. Anderson
Bracewell LLP
711 Louisiana Street, Suite 2300
Houston, Texas 77002-2770
(713) 221-1122
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable following the effective date of this registration statement.
If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. We may not complete the exchange offers and issue these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to Completion, dated February 22, 2023
PROSPECTUS
Phillips 66 Company
Offers to Exchange
up to $276,764,000 aggregate principal amount of new 2.450% Senior Notes due 2024
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 2.450% Senior Notes due 2024 originally issued May 5, 2022,
up to $440,510,000 aggregate principal amount of new 3.605% Senior Notes due 2025
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 3.605% Senior Notes due 2025 originally issued May 5, 2022,
up to $457,790,000 aggregate principal amount of new 3.550% Senior Notes due 2026
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 3.550% Senior Notes due 2026 originally issued May 5, 2022,
up to $427,239,000 aggregate principal amount of new 3.750% Senior Notes due 2028
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 3.750% Senior Notes due 2028 originally issued May 5, 2022,
up to $570,040,000 aggregate principal amount of new 3.150% Senior Notes due 2029
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 3.150% Senior Notes due 2029 originally issued May 5, 2022,
up to $441,900,000 aggregate principal amount of new 4.680% Senior Notes due 2045
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 4.680% Senior Notes due 2045 originally issued May 5, 2022, and
up to $605,161,000 aggregate principal amount of new 4.900% Senior Notes due 2046
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 4.900% Senior Notes due 2046 originally issued May 5, 2022
The Exchange Offers will expire at 5:00 p.m., New York City time,
on , 2023, unless extended.
Phillips 66 Company is offering to exchange, on the terms and subject to the conditions described in this prospectus, its 2.450% Senior Notes due 2024 (the “2024 Exchange Notes”), 3.605% Senior Notes due 2025 (the “2025 Exchange Notes”), 3.550% Senior Notes due 2026 (the “2026 Exchange Notes”), 3.750% Senior Notes due 2028 (the “2028 Exchange Notes”), 3.150% Senior Notes due 2029 (the “2029 Exchange Notes”), 4.680% Senior Notes due 2045 (the “2045 Exchange Notes”), and 4.900% Senior Notes due 2046 (the “2046 Exchange Notes”), in each case fully and unconditionally guaranteed by Phillips 66 (collectively, the “Exchange Notes”), the issuance of which has been registered under the Securities Act of 1933, as amended (the “Securities Act”), for any and all of Phillips 66 Company’s outstanding unregistered 2.450% Senior Notes due 2024 (the “2024 Original Notes”), 3.605% Senior Notes due 2025 (the “2025 Original Notes”), 3.550% Senior Notes due 2026 (the “2026 Original Notes”), 3.750% Senior Notes due 2028 (the “2028 Original Notes”), 3.150% Senior Notes due 2029 (the “2029 Original Notes”), 4.680% Senior Notes due 2045 (the “2045 Original Notes”), and 4.900% Senior Notes due 2046 (the “2046 Original Notes”), in each case fully and unconditionally guaranteed by Phillips 66 (collectively, the “Original Notes”), respectively. The Original Notes were issued on May 5, 2022 in private offers pursuant to which such notes were exchanged for notes of Phillips 66’s subsidiary, Phillips 66 Partners LP. The term “Notes” refers to both the Original Notes and the Exchange Notes. We refer to the offers to exchange the Exchange Notes for the Original Notes as the “Exchange Offers” in this prospectus.
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Material Terms of the Exchange Offers:
| • | The Exchange Offers expire at 5:00 p.m., New York City time, on , 2023, unless extended. |
| • | Upon expiration of the Exchange Offers, all outstanding 2024 Original Notes that are validly tendered and not withdrawn will be exchanged for an equal principal amount of 2024 Exchange Notes, all outstanding 2025 Original Notes that are validly tendered and not withdrawn will be exchanged for an equal principal amount of 2025 Exchange Notes, all outstanding 2026 Original Notes that are validly tendered and not withdrawn will be exchanged for an equal principal amount of 2026 Exchange Notes, all outstanding 2028 Original Notes that are validly tendered and not withdrawn will be exchanged for an equal principal amount of 2028 Exchange Notes, all outstanding 2029 Original Notes that are validly tendered and not withdrawn will be exchanged for an equal principal amount of 2029 Exchange Notes, all outstanding 2045 Original Notes that are validly tendered and not withdrawn will be exchanged for an equal principal amount of 2045 Exchange Notes, and all outstanding 2046 Original Notes that are validly tendered and not withdrawn will be exchanged for an equal principal amount of 2046 Exchange Notes. |
| • | The form and terms of the 2024 Exchange Notes, the 2025 Exchange Notes, the 2026 Exchange Notes, the 2028 Exchange Notes, the 2029 Exchange Notes, the 2045 Exchange Notes and the 2046 Exchange Notes will be identical in all material respects to the 2024 Original Notes, the 2025 Original Notes, the 2026 Original Notes, the 2028 Original Notes, the 2029 Original Notes, the 2045 Original Notes and the 2046 Original Notes, respectively, that Phillips 66 Company issued on May 5, 2022, except the Exchange Notes will not contain restrictions on transfer, will bear different CUSIP numbers and will not entitle their holders to certain registration rights relating to the Original Notes. |
| • | You may withdraw tendered Original Notes at any time prior to the expiration of the Exchange Offers. |
| • | The Exchange Offers are not subject to any minimum tender condition, but are subject to customary conditions. |
| • | The exchange of the Exchange Notes for Original Notes should not be a taxable transaction for U.S. federal income tax purposes. |
| • | There is no existing public market for the Original Notes or the Exchange Notes. We do not intend to list the Exchange Notes on any securities exchange or quotation system. |
| • | If you fail to tender your Original Notes for the Exchange Notes, you will continue to hold unregistered securities and it may be difficult for you to transfer them. |
Each broker-dealer that receives Exchange Notes for its own account pursuant to the Exchange Offers must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes. By so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Notes received in exchange for Original Notes where such Exchange Notes were acquired by such broker-dealer as a result of market-making or other trading activities. We have agreed that for a period of 180 days after the expiration of the Exchange Offers, we will make this prospectus available to any broker-dealer for use in any such resale. See “Plan of Distribution.”
Investing in the Exchange Notes involves risks. See “Risk Factors,” beginning on page 9, for a discussion of certain factors that you should consider before deciding to exchange Original Notes for Exchange Notes pursuant to the Exchange Offers.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2023.
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This prospectus is part of a registration statement on Form S-4 that we have filed with the U.S. Securities and Exchange Commission, referred to in this prospectus as the SEC. You should read this prospectus together with the registration statement, the exhibits thereto and the additional information described under the heading “Where You Can Find More Information.” In making your decision to participate in the Exchange Offers, you should rely only on the information contained in this prospectus. We have not authorized anyone to provide you with any other information. If you received any unauthorized information, you must not rely on it. We are not making an offer to sell these securities in any state or jurisdiction where the offer is not permitted. You should not assume that the information contained in this prospectus is accurate as of any date other than the date on the front cover of this prospectus. Our business, financial condition, results of operations and prospects may have changed since that date.
This prospectus incorporates by reference important business and financial information about Phillips 66 and Phillips 66 Company that is not included in or delivered with this prospectus. This information is available to you without charge upon written or oral request to: 2331 CityWest Blvd., Houston, Texas 77042, Attention: Investor Relations, (832) 765-3010. The Exchange Offers are expected to expire on , 2023 and you must make your exchange decision by the expiration date of the Exchange Offers. To obtain timely delivery, you must request the information no later than , 2023, or the date that is five business days before the expiration date of the Exchange Offers.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the information we incorporate herein by reference, includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These forward-looking statements can be identified by the fact that they do not relate only to historical or current facts. Forward-looking statements often use words such as “anticipate,” “estimate,” “believe,” “budget,” “continue,” “could,” “intend,” “may,” “plan,” “potential,” “predict,” “seek,” “should,” “will,” “would,” “expect,” “objective,” “projection,” “forecast,” “goal,” “guidance,” “outlook,” “effort,” “target” and words of similar meaning.
We based these forward-looking statements on our current expectations, estimates and projections about ourselves and the industries in which we operate in general. Although we believe that the expectations reflected in such forward-looking statements are reasonable, we caution you that these statements are not guarantees of future performance as they involve assumptions that may prove to be incorrect and involve risks and uncertainties we cannot predict. In addition, we based many of these forward-looking statements on assumptions about future events that may prove to be inaccurate. Accordingly, our actual outcomes and results may differ materially from what we have expressed or forecast in these forward-looking statements. Any differences could result from a variety of factors, including the following:
| • | Fluctuations in natural gas liquids (“NGL”), crude oil, refined petroleum product and natural gas prices and refining, marketing and petrochemical margins. |
| • | Changes in governmental policies relating to NGL, crude oil, natural gas or refined petroleum products pricing, regulation or taxation, including exports. |
| • | Capacity constraints in, or other limitations on, the pipelines, storage and fractionation facilities to which we deliver natural gas or NGL and the availability of alternative markets and arrangements for our natural gas and NGL. |
| • | Actions taken by OPEC and non-OPEC oil producing countries impacting supply and demand and correspondingly, commodity prices. |
| • | The ability to achieve the expected benefits of the integration of DCP Midstream, LP (“DCP LP”) and any other benefits that may result from the buy-in of DCP LP’s publicly held common units, if consummated. |
| • | Unexpected changes in costs or technical requirements for constructing, modifying or operating our facilities or transporting our products. |
| • | Unexpected technological or commercial difficulties in manufacturing, refining or transporting our products, including chemical products. |
| • | Lack of, or disruptions in, adequate and reliable transportation for our NGL, crude oil, natural gas and refined petroleum products. |
| • | The level and success of drilling and quality of production volumes around our midstream assets. |
| • | The inability to timely obtain or maintain permits, including those necessary for capital projects. |
| • | The inability to comply with government regulations or make capital expenditures required to maintain compliance. |
| • | Changes to worldwide government policies relating to renewable fuels, climate change and greenhouse gas emissions that adversely affect programs like the renewable fuel standards program, low carbon fuel standards and tax credits for biofuels. |
| • | General domestic and international economic and political developments including armed hostilities, including the Russia-Ukraine war, expropriation of assets, and other political, economic or diplomatic developments, including those caused by public health issues, outbreaks of diseases and pandemics. |
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| • | The impact on commercial activity and demand for refined petroleum products from any widespread public health crisis, as well as the extent and duration of recovery of economies and demand for our products following any such crisis. |
| • | Failure to complete definitive agreements and feasibility studies for, and to complete construction of, announced and future capital projects on time and within budget. |
| • | Potential disruption or interruption of our operations or damage to our facilities due to accidents, weather and climate events, civil unrest, insurrections, political events, terrorism or cyberattacks. |
| • | The inability to meet our sustainability goals, including reducing our greenhouse gas emissions intensity, developing and protecting new technologies, and commercializing lower-carbon opportunities. |
| • | Failure of new products and services to achieve market acceptance. |
| • | International monetary conditions and exchange controls. |
| • | Substantial investments required, or reduced demand for products, as a result of existing or future environmental rules and regulations, including greenhouse gas emissions reductions and reduced consumer demand for refined petroleum products. |
| • | Liability resulting from litigation or for remedial actions, including removal and reclamation obligations under environmental regulations. |
| • | Changes in tax, environmental and other laws and regulations (including alternative energy mandates) applicable to our business. |
| • | Political and societal concerns about climate change that could result in changes to our business or operations or increase expenditures, including litigation-related expenses. |
| • | Changes in estimates or projections used to assess fair value of intangible assets, goodwill and property and equipment and/or strategic decisions or other developments with respect to our asset portfolio that cause impairment charges. |
| • | Limited access to capital or significantly higher cost of capital related to changes to our credit profile or illiquidity or uncertainty in the domestic or international financial markets. |
| • | The creditworthiness of our customers and the counterparties to our transactions, including the impact of bankruptcies. |
| • | The operation, financing and distribution decisions of our joint ventures that we do not control. |
| • | The factors generally described in Item 1A.—Risk Factors in Phillips 66’s Annual Report on Form 10-K for the year ended December 31, 2022. |
We caution you not to place undue reliance on these forward-looking statements, which speak only as of the date of this prospectus or, in the case of a document incorporated by reference, as of the date of that document. Neither Phillips 66 nor Phillips 66 Company assumes any obligation to update the information contained in this document (whether as a result of new information, future events or otherwise), except as required by applicable law.
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WHERE YOU CAN FIND MORE INFORMATION
Phillips 66 files annual, quarterly and current reports, proxy statements and other information with the SEC. Phillips 66’s SEC filings are available to the public over the internet at the SEC’s website at http://www.sec.gov and on Phillips 66’s website at www.phillips66.com. The information on Phillips 66’s website is not a part of, and is not incorporated by reference into, this prospectus. Phillips 66 Company does not file separate reports, proxy statements or other information with the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
The SEC allows us to “incorporate by reference” the information Phillips 66 has filed with it, which means that we can disclose important information to you by referring you to those documents. The information we incorporate by reference is an important part of this prospectus, and later information that Phillips 66 files with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings Phillips 66 makes with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act until the termination of this offering. The documents we incorporate by reference are:
| • | Phillips 66’s Annual Report on Form 10-K for the year ended December 31, 2022 (the “2022 Annual Report on Form 10-K”), filed with the SEC on February 22, 2023; and |
| • | Phillips 66’s Current Report on Form 8-K filed with the SEC on January 6, 2023. |
We are also incorporating by reference all additional documents Phillips 66 may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the effectiveness of the registration statement of which this prospectus forms a part.
We will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, a copy of any document incorporated by reference into this prospectus, other than exhibits to any such document not specifically described above by oral request or by written request at the following address:
Phillips 66
Investor Relations Department
2331 CityWest Blvd.
Houston, Texas 77042
Telephone: (832) 765-3010
We also make available free of charge on Phillips 66’s website at www.phillips66.com Phillips 66’s annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and any amendments to those reports, as soon as reasonably practicable after Phillips 66 electronically files such material with, or furnishes it to, the SEC. Information contained on Phillips 66’s website is not incorporated by reference into this prospectus and you should not consider information contained on Phillips 66’s website as part of this prospectus.
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This summary highlights selected information about Phillips 66, the Exchange Offers and the Exchange Notes. This summary is not complete and does not contain all of the information that is important to you. To understand the Exchange Offers fully and for a more complete description of the legal terms of the Exchange Notes, you should carefully read this entire prospectus and the documents incorporated herein by reference, especially the risks of investing in the Exchange Notes discussed under “Risk Factors” contained herein and under “Item 1A—Risk Factors” beginning on page 24 of Phillips 66’s 2022 Annual Report on Form 10-K, as such discussion may be amended or updated in other reports filed by Phillips 66 with the SEC, as well as the consolidated financial statements and notes to those consolidated financial statements incorporated by reference herein. In addition, certain statements include forward-looking information that involves risks and uncertainties. See “Cautionary Note Regarding Forward-Looking Statements.”
In this prospectus, we refer to Phillips 66, its wholly owned and majority owned subsidiaries (including Phillips 66 Company) and its ownership interest in equity affiliates as “we” or “Phillips 66,” unless the context clearly indicates otherwise.
About Phillips 66 and Phillips 66 Company
Phillips 66 is a diversified energy company with midstream, chemicals, refining, and marketing and specialties businesses. Headquartered in Houston, Texas, Phillips 66 had approximately $76 billion of assets as of December 31, 2022.
Phillips 66 Company is a direct, wholly owned operating subsidiary of Phillips 66.
Phillips 66 and Phillips 66 Company are incorporated in Delaware. The principal executive offices of Phillips 66 and Phillips 66 Company are located at 2331 CityWest Boulevard, Houston, Texas 77042, and their telephone number is (832) 765-3010. Phillips 66’s website address is www.phillips66.com. Information contained on Phillips 66’s website does not constitute part of this prospectus. Phillips 66’s common stock is publicly traded on the NYSE under the ticker symbol “PSX.”
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Summary of the Exchange Offers
The summary below describes the principal terms and conditions of the Exchange Offers. Some of the terms and conditions described below are subject to important limitations and exceptions. See “The Exchange Offers” for a more detailed description of the terms and conditions of the Exchange Offers and “Description of the Exchange Notes” for a more detailed description of the terms of the Exchange Notes.
| Background |
On May 5, 2022, Phillips 66 Company completed private exchange offers for, and issued, the Original Notes. Phillips 66 Company is offering to issue the Exchange Notes for the Original Notes to satisfy its obligations under the Registration Rights Agreement, dated as of May 5, 2022 (the “Registration Rights Agreement”), that Phillips 66 Company and Phillips 66 entered into with the dealer managers with respect to those private exchanges. |
| The Exchange Offers are intended to satisfy the rights granted to holders of the Original Notes in the Registration Rights Agreement. After the Exchange Offers are complete, holders of Original Notes will no longer be entitled to any exchange or registration rights with respect to the Original Notes. |
| The Exchange Offers |
The Exchange Offers relate to the exchange of: |
| • | up to $276,764,000 aggregate principal amount of outstanding unregistered 2.450% Senior Notes due 2024 (CUSIP Numbers 718547 AA0, U7S88D AA6), for an equal aggregate principal amount of registered 2024 Exchange Notes; |
| • | up to $440,510,000 aggregate principal amount of outstanding unregistered 3.605% Senior Notes due 2025 (CUSIP Numbers 718547 AC6, U7S88D AB4), for an equal aggregate principal amount of registered 2025 Exchange Notes; |
| • | up to $457,790,000 aggregate principal amount of outstanding unregistered 3.550% Senior Notes due 2026 (CUSIP Numbers 718547 AE2, U7S88D AC2), for an equal aggregate principal amount of registered 2026 Exchange Notes; |
| • | up to $427,239,000 aggregate principal amount of outstanding unregistered 3.750% Senior Notes due 2028 (CUSIP Numbers 718547 AG7, U7S88D AD0), for an equal aggregate principal amount of registered 2028 Exchange Notes; |
| • | up to $570,040,000 aggregate principal amount of outstanding unregistered 3.150% Senior Notes due 2029 (CUSIP Numbers 718547 AJ1, U7S88D AE8), for an equal aggregate principal amount of registered 2029 Exchange Notes; |
| • | up to $441,900,000 aggregate principal amount of outstanding unregistered 4.680% Senior Notes due 2045 (CUSIP Numbers 718547 AL6, U7S88D AF5), for an equal aggregate principal amount of registered 2045 Exchange Notes; and |
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| • | up to $605,161,000 aggregate principal amount of outstanding unregistered 4.900% Senior Notes due 2046 (CUSIP Numbers 718547 AN2, U7S88D AG3), for an equal aggregate principal amount of registered 2046 Exchange Notes. |
| Phillips 66 Company will exchange all outstanding Original Notes that are validly tendered and not validly withdrawn. However, you may only exchange Original Notes in minimum denominations of $2,000 and integral multiples of $1,000 above that amount. |
| The form and terms of the Exchange Notes will be identical in all material respects to the form and terms of the corresponding outstanding Original Notes, except that the Exchange Notes will not contain restrictions on transfer, will bear different CUSIP numbers and will not entitle their holders to certain registration rights relating to the Original Notes. |
| Expiration Date |
The Exchange Offers will expire at 5:00 p.m., New York City time, on , 2023, unless we extend an Exchange Offer. In that case, the phrase “Expiration Date” will mean the latest date and time to which we extend an Exchange Offer. Phillips 66 Company will issue Exchange Notes on the Expiration Date or promptly after that date. |
| Conditions to the Exchange Offers |
The Exchange Offers are subject to customary conditions, which include, among other things, the absence of any applicable law or any applicable interpretation of the staff of the SEC that, in our reasonable judgment, would materially impair Phillips 66 Company’s ability to proceed with an Exchange Offer. The Exchange Offers are not conditioned upon any minimum principal amount of Original Notes being submitted for exchange. See “The Exchange Offers—Conditions.” |
| Procedures for Participating in the Exchange Offers |
If you wish to participate in the Exchange Offers, you must cause the book-entry transfer of your Original Notes to the Exchange Agent’s account at The Depository Trust Company (“DTC”) and the Exchange Agent must receive a confirmation of book-entry transfer through an agent’s message transmitted pursuant to DTC’s Automated Tender Offer Program (“ATOP”), by which each tendering holder will agree to be bound by the terms of the Exchange Offers set forth in this prospectus. By agreeing to the terms set forth in this prospectus, you will represent to and agree with us that, |
| • | you are acquiring the Exchange Notes in the ordinary course of your business; |
| • | you are not participating, do not intend to participate, and have no arrangement or understanding with anyone to participate in a distribution of the Exchange Notes; and |
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| • | you are not an “affiliate,” as defined in Rule 405 under the Securities Act, of Phillips 66 or a broker-dealer tendering the Original Notes acquired directly from us for its own account. |
| If you are a broker-dealer who will receive Exchange Notes for your own account in exchange for Original Notes that you acquired as a result of your market-making or other trading activities, you will be required to acknowledge that you will deliver a prospectus in connection with any resale of such Exchange Notes. |
| Resale of Exchange Notes |
Based on interpretations of the SEC staff in no-action letters issued to third parties, we believe that you may resell and transfer the Exchange Notes issued pursuant to the Exchange Offers in exchange for Original Notes without compliance with the registration and prospectus delivery provisions of the Securities Act if: |
| • | you are acquiring the Exchange Notes in the ordinary course of your business; |
| • | you have no arrangement or understanding with any person to participate in the distribution of the Exchange Notes within the meaning of the Securities Act; |
| • | you are not an affiliate of ours, as such term is defined in Rule 405 under the Securities Act; and |
| • | you are not a broker-dealer and you are not engaged in and do not intend to engage in the distribution of the Exchange Notes. |
| If you fail to satisfy any of these conditions, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with resales of the Exchange Notes, unless an exemption therefrom is applicable to you. |
| Broker-dealers that acquired the Original Notes directly from us, but not as a result of market-making or other trading activities, must comply with the registration and prospectus delivery requirements of the Securities Act in connection with resales of the Exchange Notes. |
| Each broker-dealer that receives Exchange Notes for its own account pursuant to the Exchange Offers in exchange for Original Notes that it acquired as a result of market-making or other trading activities must deliver a prospectus in connection with any resale of the Exchange Notes and provide us with a signed acknowledgement of this obligation. |
| Special Procedures for Beneficial Owners |
If your Original Notes are held through a broker, dealer, commercial bank, trust company or other nominee and you wish to surrender such Original Notes, you should contact your intermediary promptly and instruct it to surrender your Original Notes on your behalf. |
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| No Guaranteed Delivery Procedures |
No guaranteed delivery procedures are available in connection with the Exchange Offers. You must tender your Original Notes by the Expiration Date in order to participate in the Exchange Offers. |
| Acceptance of Original Notes and Delivery of Exchange Notes |
Phillips 66 Company will accept for exchange any and all Original Notes that are properly tendered in the Exchange Offers and not withdrawn prior to the Expiration Date, if you comply with the procedures of the Exchange Offers. The Exchange Notes will be delivered promptly after the Expiration Date. |
| Withdrawal Rights |
You may withdraw your tender of Original Notes at any time prior to 5:00 p.m., New York City time, on the Expiration Date, by complying with the procedures for withdrawal described in “The Exchange Offers—Withdrawal of Tenders.” |
| Accounting Treatment |
We will not recognize a gain or loss for accounting purposes as a result of the exchange. |
| Material U.S. Federal Income Tax Considerations |
The exchange of Original Notes for Exchange Notes should not be a taxable transaction for United States federal income tax purposes. Accordingly, you should not incur incremental federal income taxes as a result of your participation in the Exchange Offers. See “Material U.S. Federal Income Tax Considerations.” |
| Exchange Agent |
U.S. Bank Trust Company, National Association is serving as the exchange agent (the “Exchange Agent”) in connection with the Exchange Offers. U.S. Bank Trust Company, National Association also serves as trustee under the indenture governing the Notes. The address, telephone number and facsimile number of the Exchange Agent are listed under the heading “The Exchange Offers—Exchange Agent.” |
| Failure to Exchange Original Notes Will Adversely Affect You |
If you are eligible to participate in the Exchange Offers and you do not tender your Original Notes as described in this prospectus, you will not have any further registration or exchange rights. In that event, your Original Notes will continue to accrue interest until maturity in accordance with the terms of the Original Notes but will continue to be subject to restrictions on transfer. As a result of such restrictions and the availability of registered Exchange Notes, your Original Notes are likely to be a much less liquid security than before. |
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The Exchange Notes
The Exchange Notes have the same financial terms and covenants as the Original Notes. In this prospectus we sometimes refer to the Original Notes and the Exchange Notes together as the “Notes.” The Exchange Notes will evidence the same debt as the outstanding Original Notes that they replace. The Exchange Notes will be governed by the same indenture governing the Original Notes. The brief summary below describes the principal terms of the Exchange Notes. Some of the terms and conditions described below are subject to important limitations and exceptions. The “Description of the Exchange Notes” section of this prospectus contains a more detailed description of the terms and conditions of the Exchange Notes.
| Issuer |
Phillips 66 Company |
| Notes Offered |
$276,764,000 aggregate principal amount of 2024 Exchange Notes |
| $440,510,000 aggregate principal amount of 2025 Exchange Notes |
| $457,790,000 aggregate principal amount of 2026 Exchange Notes |
| $427,239,000 aggregate principal amount of 2028 Exchange Notes |
| $570,040,000 aggregate principal amount of 2029 Exchange Notes |
| $441,900,000 aggregate principal amount of 2045 Exchange Notes |
| $605,161,000 aggregate principal amount of 2046 Exchange Notes |
| Maturity Dates |
December 15, 2024 for the 2024 Exchange Notes |
| February 15, 2025 for the 2025 Exchange Notes |
| October 1, 2026 for the 2026 Exchange Notes |
| March 1, 2028 for the 2028 Exchange Notes |
| December 15, 2029 for the 2029 Exchange Notes |
| February 15, 2045 for the 2045 Exchange Notes |
| October 1, 2046 for the 2046 Exchange Notes |
| Interest Payment Dates |
June 15 and December 15 of each year for the 2024 Exchange Notes |
| February 15 and August 15 of each year for the 2025 Exchange Notes |
| April 1 and October 1 of each year for the 2026 Exchange Notes |
| March 1 and September 1 of each year for the 2028 Exchange Notes |
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| June 15 and December 15 of each year for the 2029 Exchange Notes |
| February 15 and August 15 of each year for the 2045 Exchange Notes |
| April 1 and October 1 of each year for the 2046 Exchange Notes |
| Interest on each series of Exchange Notes will accrue from the last interest payment date on which interest was paid on the Original Notes surrendered in exchange therefor. The holders of the Original Notes that are accepted for exchange will be deemed to have waived the right to receive payment of accrued interest on those Original Notes from the last interest payment date on which interest was paid on such Original Notes to the date of issuance of the Exchange Notes. Interest on the Original Notes accepted for exchange will cease to accrue upon issuance of the Exchange Notes. |
| Interest Rates |
2.450% for the 2024 Exchange Notes |
| 3.605% for the 2025 Exchange Notes |
| 3.550% for the 2026 Exchange Notes |
| 3.750% for the 2028 Exchange Notes |
| 3.150% for the 2029 Exchange Notes |
| 4.680% for the 2045 Exchange Notes |
| 4.900% for the 2046 Exchange Notes |
| Optional Redemption |
Phillips 66 Company may elect to redeem any or all of the Exchange Notes of a series at any time in principal amounts of $2,000 or any integral multiple of $1,000 above that amount. Phillips 66 Company will pay an amount equal to the principal amount of Exchange Notes redeemed plus a make-whole premium. Phillips 66 Company will also pay accrued but unpaid interest to, but not including, the redemption date. Please read “Description of the Exchange Notes—Optional Redemption.” |
| Guarantee |
Phillips 66 will fully and unconditionally guarantee on a senior unsecured basis the full and prompt payment of the principal of and any premium and interest on the Exchange Notes, when and as it becomes due and payable, whether at maturity or otherwise. |
| Certain Covenants |
Phillips 66 Company will issue the Exchange Notes under an indenture containing covenants for your benefit. These covenants restrict our ability, with certain exceptions, to: |
| • | incur debt secured by liens; |
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| • | engage in sale/leaseback transactions; and |
| • | merge, consolidate or transfer all or substantially all of our assets. |
| See “Description of the Exchange Notes—Restrictive Covenants.” |
| Lack of a Public Market for the Notes |
The Exchange Notes generally will be freely transferable, but there can be no assurance as to the development or liquidity of any market for the Exchange Notes. We do not intend to apply for a listing of the Exchange Notes on any securities exchange or an automated dealer quotation system. |
| Use of Proceeds |
We will not receive any proceeds from the issuance of the Exchange Notes. |
| Governing Law |
The Exchange Notes will be governed by, and construed in accordance with, the laws of the State of New York. |
| Ranking |
The Exchange Notes will constitute senior unsecured debt of Phillips 66 Company and will rank equally with each other series of notes and with Phillips 66 Company’s other senior unsecured debt from time to time outstanding; senior to its subordinated debt from time to time outstanding; and effectively junior to its secured debt and to all debt and other liabilities of its subsidiaries from time to time outstanding. Phillips 66’s guarantee of the Exchange Notes will rank equally with all of its other unsecured and unsubordinated debt from time to time outstanding; senior to its subordinated debt from time to time outstanding; and effectively junior to its secured debt and to all debt and other liabilities of its subsidiaries, other than Phillips 66 Company, from time to time outstanding. |
| Form and Denominations |
Initially, the Exchange Notes will be represented by one or more global securities deposited with, or on behalf of, DTC or its nominee. Beneficial interests in the global securities may be held through the Euroclear System (“Euroclear”) and Clearstream Banking, S.A. (“Clearstream”) (as direct participants in DTC.) The Exchange Notes will be issued in minimum denominations of $2,000 and integral multiples of $1,000 above that amount. See “Description of the Exchange Notes—Book-Entry System.” |
| Risk Factors |
Before investing in the Exchange Notes, you should carefully consider all of the information included or incorporated by reference in this prospectus, including the discussion in the section entitled “Risk Factors,” beginning on page 9, for an explanation of certain risks relating to an investment in the Exchange Notes. |
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You should carefully consider all the information set forth in this prospectus and incorporated by reference herein before deciding to participate in the Exchange Offers. Your investment in the Exchange Notes involves risks. Before investing in the Exchange Notes, you should carefully consider, among other matters, the risk factors below and information set forth under the heading “Item 1A—Risk Factors” in Phillips 66’s 2022 Annual Report on Form 10-K, which is incorporated by reference into this prospectus, and other documents filed with the SEC by Phillips 66. See “Where You Can Find More Information” and “Cautionary Note Regarding Forward-Looking Statements.”
Risks Related to the Exchange Offers
If you wish to tender your Original Notes for exchange, you must comply with the requirements described in this prospectus.
Delivery of Exchange Notes in exchange for Original Notes tendered and accepted for exchange pursuant to the Exchange Offers will be made only after timely receipt by the Exchange Agent of book-entry transfer of Original Notes into the Exchange Agent’s account at DTC, as depositary, including an agent’s message (as defined under “The Exchange Offers—Procedures for Tendering”). We are not required to notify you of defects or irregularities in tenders of Original Notes for exchange. Exchange Notes that are not tendered or that are tendered but we do not accept for exchange will, following consummation of the Exchange Offer, continue to be subject to the existing transfer restrictions under the Securities Act and, upon consummation of the Exchange Offer, certain registration and other rights under the Registration Rights Agreement will terminate. See “The Exchange Offers—Procedures for Tendering” and “The Exchange Offers—Consequence of Failure to Exchange.”
If you do not exchange your Original Notes, you may have difficulty transferring them at a later time.
Original Notes that you do not tender or that we do not accept will, following the Exchange Offers, continue to be restricted securities, and you may not offer to sell them except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities law. Because we anticipate that most holders of Original Notes will elect to exchange their Original Notes, we expect that the liquidity of the market for any Original Notes remaining after the completion of the Exchange Offers will be substantially limited. Any Original Notes tendered and exchanged in the Exchange Offers will reduce the aggregate principal amount of the applicable series of Original Notes. Following the Exchange Offers, if you do not tender your Original Notes, you generally will not have any further registration rights, and your Original Notes will continue to be subject to certain transfer restrictions. Accordingly, the liquidity of the market for the Original Notes could be adversely affected.
Some holders who exchange their Original Notes may be deemed to be underwriters, and these holders will be required to comply with the registration and prospectus delivery requirements in connection with any resale transaction.
If you exchange your Original Notes in the Exchange Offers for the purpose of participating in a distribution of the Exchange Notes, you may be deemed to have received restricted securities and, if so, will be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. In addition, any broker-dealer who holds Original Notes acquired for its own account as a result of market-making or other trading activities and who receives Exchange Notes in exchange for such Original Notes pursuant to the Exchange Offers may be a statutory underwriter and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes. Our obligation to keep the registration statement of which this prospectus forms a part effective is limited. Accordingly, we cannot guarantee that a current prospectus will be available at all times to broker-dealers wishing to resell their Exchange Notes.
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Consummation of the Exchange Offers may not occur.
Each of the Exchange Offers is subject to the satisfaction of certain conditions. See “The Exchange Offers—Conditions.” Even if the Exchange Offers are completed, they may not be completed on the schedule described in this prospectus. Accordingly, holders participating in the Exchange Offers may have to wait longer than expected to receive their Exchange Notes, during which time such holders will not be able to effect transfers of their Original Notes tendered in the exchange offers. Until we announce whether we have accepted valid tenders of Original Notes for exchange pursuant to one of the Exchange Offers, no assurance can be given that such Exchange Offer will be completed. In addition, subject to applicable law and as provided in this prospectus, we may, in our sole discretion, extend, re-open, amend, waive any condition of or terminate any of the Exchange Offers at any time before our announcement of whether we will accept valid tenders of Original Notes for exchange pursuant to such Exchange Offer, which we expect to make as soon as reasonably practicable after the Expiration Date.
Holders of the Original Notes who do not tender their Original Notes will have no further rights under the Registration Rights Agreement, including registration rights and the right to receive additional interest.
Holders who do not tender their Original Notes will not have any further registration rights or any right to receive additional interest under the Registration Rights Agreement or otherwise.
Risks Related to the Exchange Notes
The Exchange Notes and the guarantees will be unsecured and effectively subordinated to the rights of Phillips 66 Company’s secured indebtedness and structurally subordinated to the indebtedness of any of its future subsidiaries.
The Exchange Notes will be general unsecured senior obligations ranking equally with each other series of Notes and with Phillips 66 Company’s other senior unsecured debt from time to time outstanding, senior to its subordinated debt from time to time outstanding and effectively junior to all of its secured debt. The Exchange Notes will also be structurally subordinated to any indebtedness and other liabilities of Phillips 66 Company’s future non-guarantor subsidiaries.
Phillips 66’s guarantee of each series of the Exchange Notes will rank equally with its guarantee of each other series of Exchange Notes and with its other unsecured and unsubordinated debt from time to time outstanding, senior to its subordinated debt from time to time outstanding and effectively junior to all of its existing and future secured debt. The guarantees of Phillips 66 will also be structurally subordinated to any indebtedness and other liabilities of its subsidiaries, other than Phillips 66 Company.
If we or Phillips 66 Company are declared bankrupt, become insolvent or are liquidated or reorganized, our or Phillips 66 Company’s secured debt will be entitled to be paid in full from the assets, if any, securing that debt before any payment may be made with respect to the notes or the guarantee. Holders of the Exchange Notes will participate ratably in the remaining assets with all holders of our or Phillips 66 Company’s unsecured indebtedness, including debt incurred after the Exchange Notes are issued, that does not rank junior to the Exchange Notes or guarantees, as the case may be, including trade payables and all of the other general indebtedness, based upon the respective amounts owed to each holder or creditor. In any of the foregoing events, there may not be sufficient assets to pay amounts due on the Exchange Notes. As a result, holders of the Exchange Notes would likely receive less, ratably, than holders of our or Phillips 66 Company’s secured indebtedness.
Your ability to transfer the Exchange Notes may be limited by the absence of a trading market.
The Exchange Notes will be new securities for which currently there is no trading market. We do not intend to apply for listing of the Exchange Notes on any securities exchange or stock market. The liquidity of any
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market for the Exchange Notes will depend on the number of holders of those notes, the interest of securities dealers in making a market in those notes and other factors. Accordingly, we cannot assure you as to the development or liquidity of any market for the Exchange Notes. If the Exchange Notes are traded after their initial issuance, they may trade at a discount from their respective initial offering prices, depending on prevailing interest rates, the market for similar securities, our performance and other factors. To the extent that an active trading market for the Exchange Notes does not develop, the liquidity and trading prices for the Exchange Notes may be harmed. Thus, you may not be able to liquidate your investment rapidly, and your lenders may not readily accept the Exchange Notes as collateral for loans.
Future trading prices of the Exchange Notes will depend on many factors, including but not limited to:
| • | our operating performance and financial condition; |
| • | the interest of the securities dealers in making a market in the Exchange Notes; and |
| • | the market for similar securities. |
Changes in our credit ratings or the debt markets may adversely affect the market price of the Exchange Notes. Deterioration in our credit profile could increase our costs of borrowing money and limit our access to the capital markets and commercial credit, and could trigger our partners’ rights under joint venture arrangements.
The price for the Exchange Notes will depend on a number of factors, including but not limited to:
| • | our credit ratings with major credit rating agencies; |
| • | the prevailing interest rates being paid by other companies similar to us; |
| • | our financial condition, operating performance and future prospects; |
| • | securities analysts’ perception of our company, our growth prospects and our industry in general; and |
| • | the overall condition of the financial markets and global and domestic economies. |
The condition of the financial markets and prevailing interest rates have fluctuated in the past and are likely to fluctuate in the future. Such fluctuations could have an adverse effect on the price of the Exchange Notes. Credit rating agencies continually review their ratings for the companies they follow, including us, and revise those ratings as they believe warranted. If these rating agencies assign us or the Exchange Notes a rating lower than investment grade or suspend, announce a review of or withdraw entirely a rating in the future, the market price of the Exchange Notes would be adversely affected. The credit rating agencies also evaluate the industries in which we operate as a whole and may change their credit rating for us based on their overall view of such industries. If any of our other outstanding debt is rated and subsequently downgraded, raising capital will become more difficult, borrowing costs under our credit facilities and other future borrowings may increase and the market price of the Exchange Notes may decrease. In addition, our borrowing costs would increase, and our funding sources could decrease.
A failure by us to maintain an investment grade rating also could affect our business relationships with suppliers and operating partners. For example, our agreement with Chevron Corporation regarding Chevron Phillips Chemical Company LLC (“CPChem”) permits Chevron to buy our 50 percent interest in CPChem for fair market value if, at any time, Phillips 66 experiences a change in control or if both Moody’s Investor Service and Standard & Poor’s Ratings Service lower Phillips 66’s credit ratings below investment grade and the credit rating from either rating agency remains below investment grade for 365 days thereafter, with fair market value determined by agreement or by nationally recognized investment banks. As a result of these factors, a downgrade of Phillips 66’s credit ratings could have a materially adverse impact on our future operations and financial position.
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Phillips 66 depends on dividends and other distributions from its subsidiaries.
Phillips 66 conducts substantially all of its operations through subsidiaries, and those subsidiaries generate substantially all of its operating income and cash flow. As a result, distributions or advances from those subsidiaries are the principal source of funds necessary to meet the debt service obligations of Phillips 66. Although Phillips 66 Company owns certain operating assets directly, it conducts a substantial portion of its operations through subsidiaries. Accordingly, contractual provisions or laws, as well as the subsidiaries’ financial condition and operating requirements, may limit the ability of Phillips 66 and Phillips 66 Company to obtain cash from their subsidiaries that each requires to pay its debt service obligations, including any payments required to be made by Phillips 66 Company under the Exchange Notes and including Phillips 66’s guarantees of the Exchange Notes. The indenture does not contain any covenants or other provisions designed to protect holders of the notes if Phillips 66 or Phillips 66 Company participates in a highly leveraged transaction.
The subsidiaries of Phillips 66 and Phillips 66 Company are legally distinct and have no obligations to pay amounts due on the indebtedness of Phillips 66 or Phillips 66 Company, or to make funds available for such payment. In addition, subsidiaries of Phillips 66 and Phillips 66 Company will be permitted under the terms of the indenture to incur additional indebtedness that may restrict or prohibit the making of distributions, the payment of dividends or the making of loans by such subsidiaries to Phillips 66 and Phillips 66 Company and the indenture does not contain provisions that give holders the right to require Phillips 66 or Phillips 66 Company to repurchase their securities in the event of a decline in Phillips 66’s or Phillips 66 Company’s credit ratings for any reason, including as a result of a takeover, recapitalization or similar restructuring or otherwise. The agreements governing current and future indebtedness of Phillips 66 Company’s subsidiaries may not permit those subsidiaries to provide Phillips 66 Company with sufficient dividends, distributions or loans to fund payments on the Exchange Notes when due.
The indenture does not restrict the amount of additional debt that Phillips 66 or Phillips 66 Company may incur.
The Exchange Notes and the indenture under which the Exchange Notes will be issued do not place any limitation on the amount of debt securities that may be issued under the indenture or the amount of other unsecured debt or securities that Phillips 66, Phillips 66 Company or any of their respective subsidiaries may issue or otherwise incur. Our incurrence of additional debt may have important consequences for you as a holder of the Exchange Notes, including making it more difficult for us to satisfy our obligations with respect to the Exchange Notes, a loss in the market value of your Notes and a risk that the credit rating of the notes is lowered or withdrawn.
Phillips 66’s board of directors has broad discretion to determine that a refinery or manufacturing plant is not a principal property and therefore not subject to certain covenants in the indenture.
The indenture governing the Exchange Notes includes covenants that limit the ability of Phillips 66 and its principal domestic subsidiaries to issue debt for borrowed money secured by a lien upon a principal property or engage in sale and leaseback transactions with respect to principal properties. Phillips 66 Company is Phillips 66’s only principal domestic subsidiary. The indenture provides that a principal property means any refinery or manufacturing plant located in the United States and owned by Phillips 66 or a subsidiary unless, in the opinion of Phillips 66’s board of directors, that refinery or manufacturing plant is not materially important to the total business conducted by Phillips 66 and its consolidated subsidiaries. In addition, the term principal property does not include any transportation or marketing facilities or assets. Although it has not yet done so, under the terms of the indenture Phillips 66’s board of directors has broad discretion to determine from time to time that a refinery or manufacturing plant is not a principal property and therefore such refinery or plant is not subject to the covenants in the indenture and, accordingly, Phillips 66 could incur debt secured by a lien on such property without equally and ratably securing the notes or enter into a sale leaseback in respect of such property.
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The Exchange Offers are intended to satisfy certain of Phillips 66 Company’s obligations under the Registration Rights Agreement entered into in connection with the issuance of the Original Notes. Phillips 66 Company will not receive any proceeds from the issuance of the Exchange Notes. In exchange for issuing the Exchange Notes as contemplated in the Exchange Offers, Phillips 66 Company will receive Original Notes in the same principal amount. The form and terms of the Exchange Notes are identical in all material respects to the form and terms of the Original Notes, except as described below under the heading “The Exchange Offers—Terms of the Exchange Offers.” The Original Notes tendered in exchange for the Exchange Notes will be retired and cancelled and cannot be re-issued. Accordingly, issuance of the Exchange Notes will not result in any increase in Phillips 66 Company’s outstanding debt.
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Purpose of the Exchange Offers
On May 5, 2022, Phillips 66 Company consummated prior private offers to exchange (i) any and all 2.450% Senior Notes due December 15, 2024 issued by Phillips 66 Partners LP (“PSXP”), a Delaware limited partnership and a wholly owned subsidiary of Phillips 66 Company, for up to an aggregate principal amount of $300 million of new 2.450% Senior Notes due December 15, 2024 issued by Phillips 66 Company, (ii) any and all 3.605% Senior Notes due February 15, 2025 issued by PSXP for up to an aggregate principal amount of $500 million in new 3.605% Senior Notes due February 15, 2025 issued by Phillips 66 Company, (iii) any and all 3.550% Senior Notes due October 1, 2026 issued by PSXP for up to an aggregate principal amount of $500 million in new 3.550% Senior Notes due October 1, 2026 issued by Phillips 66 Company, (iv) any and all 3.750% Senior Notes due March 1, 2028 issued by PSXP for up to an aggregate principal amount of $500 million in new 3.750% Senior Notes due March 1, 2028 issued by Phillips 66 Company, (v) any and all 3.150% Senior Notes due December 15, 2029 issued by PSXP for up to an aggregate principal amount of $600 million in new 3.150% Senior Notes due December 15, 2029 issued by Phillips 66 Company, (vi) any and all 4.680% Senior Notes due February 15, 2045 issued by PSXP for up to an aggregate principal amount of $450 million in new 4.680% Senior Notes due February 15, 2045 issued by Phillips 66 Company, and (vii) any and all 4.900% Senior Notes due October 1, 2046 issued by PSXP for up to an aggregate principal amount of $625 million in new 4.900% Senior Notes due October 1, 2046 issued by Phillips 66 Company.
In connection with the prior exchange offers, Phillips 66 Company and Phillips 66 entered into the Registration Rights Agreement with Barclays Capital Inc., J.P. Morgan Securities LLC and RBC Capital Markets, LLC, as dealer managers for the prior exchange offers. Pursuant to the Registration Rights Agreement, Phillips 66 Company agreed:
| • | to use its commercially reasonable efforts to file with the SEC and cause to become effective under the Securities Act a registration statement relating to an offer to exchange the Original Notes for the Exchange Notes; |
| • | to complete the Exchange Offers on or before May 5, 2023, which we refer to as the Target Registration Date; and |
| • | unless the Exchange Offers would not be permitted by applicable law or SEC policy, to commence the Exchange Offers and to use its commercially reasonable efforts to issue on or prior to 60 days, or longer, if required by the federal securities laws, after the date the registration statement of which this prospectus forms a part becomes effective, Exchange Notes in exchange for all Original Notes tendered prior thereto in the Exchange Offers. |
The Registration Rights Agreement provides, among other things, that if Phillips 66 Company defaults in its obligations to take required actions to make the Exchange Offers within the required time period described above, then Phillips 66 Company will pay additional interest to each holder of notes, at a rate of 0.25% per annum of the principal amount of Original Notes held by such holder, with respect to the first 90 days after the Target Registration Date with respect to such notes (which rate will be increased by an additional 0.25% per annum for each subsequent 90-day period that such additional interest continues to accrue), in each case until the exchange offer for such notes is completed or the shelf registration statement for such notes is declared effective or is no longer required to be effective; provided, however, that at no time may the rate at which additional interest accrues exceed 1.00% per annum; and provided, further, that upon the exchange of Exchange Notes for all Original Notes, additional interest on such notes shall cease to accrue.
Phillips 66 Company agreed to issue and exchange the Exchange Notes for all outstanding Original Notes properly tendered and not withdrawn before the expiration of the Exchange Offers. The summary in this document of the Registration Rights Agreement is not complete and is subject to, and is qualified in its entirety by, all the provisions of the Registration Rights Agreement. We urge you to read carefully the entire Registration
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Rights Agreement. A copy of the Registration Rights Agreement has been filed as an exhibit to the registration statement of which this prospectus forms a part. The registration statement is intended to satisfy some of Phillips 66 Company’s obligations under the Registration Rights Agreement.
Phillips 66 Company is making the Exchange Offers in reliance on the position of the SEC as set forth in Exxon Capital Holdings Corporation and similar no-action letters. However, we have not sought our own no-action letter. Based upon these interpretations by the SEC, we believe that a holder of Exchange Notes who is not our “affiliate” within the meaning of Rule 405 of the Securities Act and who exchanges Original Notes for Exchange Notes in the Exchange Offers generally may offer the Exchange Notes for resale, sell the Exchange Notes and otherwise transfer the Exchange Notes without further registration under the Securities Act and without delivery of a prospectus that satisfies the requirements of Section 10 of the Securities Act. This does not apply, however, to a holder who is our “affiliate” within the meaning of Rule 405 of the Securities Act. We also believe that a holder may offer, sell or transfer the Exchange Notes only if the holder acknowledges that the holder is acquiring the Exchange Notes in the ordinary course of its business and is not participating, does not intend to participate and has no arrangement or understanding with any person to participate in a distribution of the Exchange Notes.
Any holder of the Original Notes using the Exchange Offers to participate in a distribution of Exchange Notes cannot rely on the no-action letters referred to above. Any broker-dealer who holds Original Notes acquired for its own account as a result of market-making or other trading activities and who receives Exchange Notes in exchange for such Original Notes pursuant to the Exchange Offers may be a statutory underwriter and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes. See “Plan of Distribution.” You may not participate in the Exchange Offers if you are a broker-dealer tendering Original Notes that you acquired directly from Phillips 66 Company for your own account.
Except as set forth in this prospectus, this prospectus may not be used for an offer to resell, resale or other transfer of Exchange Notes.
The Exchange Offers are not being made to, nor will we accept tenders for exchange from, holders of Original Notes in any jurisdiction in which the Exchange Offers or the acceptance of them would not be in compliance with the securities or blue sky laws of such jurisdiction.
Resale of the Exchange Notes
We believe that you may resell the Exchange Notes to the public without registration under the Securities Act and without delivering a prospectus that satisfies the requirements of the Securities Act, if you can make the three representations set forth above under “Prospectus Summary—Summary of the Exchange Offers—Procedures for Participating in the Exchange Offers.” However, if you intend to participate in a distribution of the Exchange Notes, you must comply with the registration requirements of the Securities Act and deliver a prospectus, unless an exemption from registration is otherwise available. In addition, you cannot be an “affiliate,” as defined under Rule 405 of the Securities Act, of Phillips 66 Company or a broker-dealer tendering the Original Notes acquired directly from Phillips 66 Company for its own account. Each holder of Original Notes that submits an agent’s message will be deemed to have represented that you meet these conditions exempting you from the registration requirements.
We base our view on interpretations by the staff of the SEC in no-action letters issued to other issuers in Exchange Offers like ours. We have not, however, asked the SEC to consider these particular Exchange Offers in the context of a no-action letter. Therefore, you cannot be sure that the SEC will treat these Exchange Offers in the same way as it has treated others in the past. If our belief is wrong, or if you cannot truthfully make the representations described above, and you transfer any Exchange Note issued to you in the Exchange Offers without meeting the registration and prospectus delivery requirements of the Securities Act, or without an exemption from such requirements, you could incur liability under the Securities Act. We are not indemnifying
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you for any such liability, and we will not protect you against any loss incurred as a result of any such liability under the Securities Act.
A broker-dealer that has purchased Original Notes for market-making or other trading activities has to deliver a prospectus in order to resell any Exchange Notes it has received for its own account in the exchange. This prospectus may be used by a broker-dealer to resell any of its Exchange Notes. In addition, a broker-dealer that has acquired the Original Notes for its own account as a result of market-making or other trading activities may participate in the Exchange Offers if it has not entered into any arrangement or understanding with us or any of our affiliates to distribute the Exchange Notes. Phillips 66 Company has agreed in the Registration Rights Agreement to make this prospectus, and any amendment or supplement to this prospectus, available to any broker-dealer that requests copies for a period of up to one year after the registration statement relating to these Exchange Offers is declared effective. See “Plan of Distribution” for more information regarding broker-dealers.
Terms of the Exchange Offers
Based on the terms and conditions in this prospectus, Phillips 66 Company will issue $1,000 principal amount of the applicable series of Exchange Notes in exchange for each $1,000 principal amount of the corresponding series of outstanding Original Notes properly tendered pursuant to the Exchange Offers and not withdrawn prior to the Expiration Date. Original Notes may be tendered in minimum denominations of $2,000 and integral multiples of $1,000 above that amount. The form and terms of the Exchange Notes are the same as the form and terms of the Original Notes except that:
| • | the Exchange Notes will have a different CUSIP number from the Original Notes; |
| • | the Exchange Notes will be registered for the Exchange Offers under the Securities Act and, therefore, the Exchange Notes will not bear legends restricting the transfer of the Exchange Notes; and |
| • | holders of the Exchange Notes will not be entitled to any of the registration rights of holders of Original Notes under the Registration Rights Agreement, which will terminate upon the consummation of the Exchange Offers. |
The Exchange Notes will evidence the same indebtedness as the Original Notes, which they replace, and will be issued under, and be entitled to the benefits of, the same indenture that authorized the issuance of the Original Notes. As a result, the Original and Exchange Notes of each series of Notes will be treated as a single class of debt securities under the indenture.
As of the date of this prospectus, $276,764,000 in aggregate principal amount of the 2024 Original Notes, $440,510,000 in aggregate principal amount of the 2025 Original Notes, $457,790,000 in aggregate principal amount of the 2026 Original Notes, $427,239,000 in aggregate principal amount of the 2028 Original Notes, $570,040,000 in aggregate principal amount of the 2029 Original Notes, $441,900,000 in aggregate principal amount of the 2045 Original Notes, and $605,161,000 in aggregate principal amount of the 2046 Original Notes are outstanding. Cede & Co., as nominee for DTC, is the registered owner of the Original Notes. Solely for reasons of administration, Phillips 66 Company has fixed the close of business on , 2023 as the record date for the Exchange Offers for purposes of determining the persons to whom this prospectus will be mailed initially. There will be no fixed record date for determining holders of the Original Notes entitled to participate in the Exchange Offers.
In connection with the Exchange Offers, neither the General Corporation Law of the State of Delaware nor the indenture governing the Notes gives you any appraisal or dissenters’ rights nor any other right to seek monetary damages in court. We intend to conduct the Exchange Offers in accordance with the provisions of the Registration Rights Agreement and the applicable requirements of the Exchange Act and the related SEC rules and regulations.
For all relevant purposes, Phillips 66 Company will be regarded as having accepted properly tendered Original Notes if and when we give oral (to be promptly confirmed in writing) or written notice of its acceptance
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to the Exchange Agent. The Exchange Agent will act as agent for the surrendering holders of Original Notes for the purposes of receiving the Exchange Notes from Phillips 66 Company.
If you tender Original Notes in the Exchange Offers, you will not be required to pay brokerage commissions or fees. In addition, you will not have to pay transfer taxes for the exchange of Original Notes. We will pay all charges and expenses, other than certain applicable taxes described under “—Transfer Taxes” below.
By tendering Original Notes in the Exchange Offers, you will be making the representations described under “—Representations on Tendering Original Notes” below.
Expiration Date; Extensions; Amendments
The “Expiration Date” is 5:00 p.m., New York City time, on , 2023, unless Phillips 66 Company, in its sole discretion, extends an Exchange Offer, in which case the Expiration Date is the latest date and time to which Phillips 66 Company extends such Exchange Offer. The extension of any particular Exchange Offer will not result in an extension of any other Exchange Offer unless Phillips 66 Company so provides in the relevant notice of extension.
In order to extend an Exchange Offer, Phillips 66 Company will:
| • | notify the Exchange Agent of any extension by oral (to be promptly confirmed in writing) or written notice; and |
| • | issue a press release or other public announcement that will include disclosure of the approximate number of Original Notes deposited; such press release or announcement will be issued prior to 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. |
Phillips 66 Company expressly reserves the right:
| • | to delay accepting any Original Notes, but only to the extent that such delay is the result of an extension of such Exchange Offer and permitted by Rule 14e-1 promulgated under the Exchange Act; |
| • | to extend the Exchange Offers; or |
| • | if, in the opinion of its counsel, the consummation of an Exchange Offer would violate any law or interpretation of the staff of the SEC, to terminate or amend such exchange offer by giving oral (to be promptly confirmed in writing) or written notice to the Exchange Agent. |
Any delay in acceptance, extension, termination or amendment will be followed as soon as practicable by a press release or other public announcement. Phillips 66 Company may terminate or amend the Exchange Offer for each series independently. If an Exchange Offer is amended in a manner determined by Phillips 66 Company to constitute a material change, Phillips 66 Company will promptly disclose that amendment by means of a prospectus supplement that will be distributed to the holders. Phillips 66 Company will also extend such Exchange Offer for a period of five to ten business days, depending upon the significance of the amendment and the manner of disclosure to the holders, if the Exchange Offer would otherwise expire during the five- to ten-business-day period following such amendment.
Phillips 66 Company will have no obligation to publish, advertise, or otherwise communicate any public announcement of any delay, extension, amendment or termination that Phillips 66 Company may choose to make, other than by making a timely release to an appropriate news agency.
Interest on the Exchange Notes
The 2024 Exchange Notes will accrue interest on the same terms as the 2024 Original Notes, i.e., at the rate of 2.450% per year from the most recent date to which interest has been paid, payable semi-annually in arrears on June 15 and December 15 of each year.
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The 2025 Exchange Notes will accrue interest on the same terms as the 2025 Original Notes, i.e., at the rate of 3.605% per year from the most recent date to which interest has been paid, payable semi-annually in arrears on February 15 and August 15 of each year.
The 2026 Exchange Notes will accrue interest on the same terms as the 2026 Original Notes, i.e., at the rate of 3.550% per year from the most recent date to which interest has been paid, payable semi-annually in arrears on April 1 and October 1 of each year.
The 2028 Exchange Notes will accrue interest on the same terms as the 2028 Original Notes, i.e., at the rate of 3.750% per year from the most recent date to which interest has been paid, payable semi-annually in arrears on March 1 and September 1 of each year.
The 2029 Exchange Notes will accrue interest on the same terms as the 2029 Original Notes, i.e., at the rate of 3.150% per year from the most recent date to which interest has been paid, payable semi-annually in arrears on June 15 and December 15 of each year.
The 2045 Exchange Notes will accrue interest on the same terms as the 2045 Original Notes, i.e., at the rate of 4.680% per year from the most recent date to which interest has been paid, payable semi-annually in arrears on February 15 and August 15 of each year.
The 2046 Exchange Notes will accrue interest on the same terms as the 2046 Original Notes, i.e., at the rate of 4.990% per year from the most recent date to which interest has been paid, payable semi-annually in arrears on April 1 and October 1 of each year.
Procedures For Tendering
In order to participate in the Exchange Offers, you must properly tender your Original Notes to the Exchange Agent as described below. It is your responsibility to properly tender your Original Notes. We have the right to waive any defects; however, we are not required to waive defects and are not required to notify you of defects in your tender.
If you have any questions or need help in exchanging your Original Notes, please call the Exchange Agent, whose address and phone number are set forth below under “—Exchange Agent.”
All of the Original Notes were issued in book-entry form, and all of the Original Notes are currently represented by global certificates registered in the name of Cede & Co., the nominee of DTC. The Exchange Agent and DTC have confirmed that the Original Notes may be tendered using DTC’s Automated Tender Offer Program, or ATOP. The Exchange Agent will establish an account with DTC for purposes of each Exchange Offer promptly after the commencement of such Exchange Offer, and DTC participants may electronically transmit their acceptance of such exchange offer by causing DTC to transfer their Original Notes to the Exchange Agent using the ATOP procedures. In connection with the transfer, DTC will send an “agent’s message” to the Exchange Agent. The agent’s message will state that DTC has received instructions from the participant to tender Original Notes and that the participant has received and agrees to be bound by the terms set forth in this prospectus.
If you do not withdraw your tender of Original Notes prior to the Expiration Date, you will be regarded as agreeing to tender the Exchange Notes in accordance with the terms and conditions in the Exchange Offers.
If you are a beneficial owner of the Original Notes and your Original Notes are held through a broker, dealer, commercial bank, trust company or other nominee and you want to tender your Original Notes, you should contact your intermediary promptly and instruct it to tender the Original Notes on your behalf. If you wish to tender on your own behalf, you must either arrange to have your Original Notes registered in your name or obtain a properly completed bond power from the registered holder. The transfer of registered ownership may take a long time.
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By tendering, you will make the representations described below under “—Representations on Tendering Original Notes.” In addition, each participating broker-dealer must acknowledge that it will deliver a prospectus in connection with any resale of the Exchange Notes. See “Plan of Distribution.”
Your tender and our acceptance of the tender will constitute the agreement between you and Phillips 66 Company set forth in this prospectus.
There is no procedure for guaranteed late delivery of the Original Notes.
Acceptance of Tendered Original Notes
We will determine in our sole discretion all questions as to the validity, form, acceptance, withdrawal and eligibility, including time of receipt of surrendered Original Notes. Our determination will be final and binding.
We reserve the absolute right:
| • | to reject any and all Original Notes not properly tendered; |
| • | to reject any Original Notes if our acceptance of them would, in the opinion of our counsel, be unlawful; and |
| • | to waive any defects, irregularities or conditions of tender as to particular Original Notes. |
Our interpretation of the terms and conditions of the Exchange Offers will be final and binding on all parties.
Unless waived, you must cure any defects or irregularities in connection with tenders of Original Notes within the time period we will determine. Although we intend to notify holders of defects or irregularities in connection with tenders of Original Notes, neither we, the Exchange Agent nor any other person will be liable for failure to give such notice. Tenders of Original Notes will not be deemed to have been made until any defects or irregularities have been cured or waived. Any Original Notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned to the tendering holder promptly following the Expiration Date of the Exchange Offers.
We do not currently intend to acquire any Original Notes that are not tendered in the Exchange Offers or to file a registration statement to permit resales of any Original Notes that are not tendered pursuant to the Exchange Offers. We reserve the right in our sole discretion to purchase or make offers for any Original Notes that remain outstanding after the Expiration Date. To the extent permitted by applicable law, we also reserve the right in our sole discretion to purchase Original Notes in the open market, in privately negotiated transactions or otherwise. The terms of any future purchases or offers could differ from the terms of the Exchange Offers.
Representations on Tendering Original Notes
By surrendering Original Notes pursuant to the Exchange Offers, you will be telling us that, among other things,
| • | you have full power and authority to surrender, sell, assign and transfer the Original Notes tendered; |
| • | you are acquiring the Exchange Notes in the ordinary course of your business; |
| • | you are not an “affiliate,” as defined in Rule 405 under the Securities Act, of Phillips 66 Company, or a broker-dealer tendering the Original Notes acquired directly from Phillips 66 Company for its own account; |
| • | you are not participating, do not intend to participate and have no arrangement or understanding with any person to participate in the distribution of the Exchange Notes; |
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| • | you acknowledge and agree that if you are a broker-dealer registered under the Exchange Act or you are participating in the Exchange Offers for the purposes of distributing the Exchange Notes, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale of the Exchange Notes, and you cannot rely on the position of the SEC staff in their no-action letters; |
| • | you understand that a secondary resale transaction described above and any resales of Exchange Notes obtained by you in exchange for Original Notes acquired by you directly from us should be covered by an effective registration statement containing the selling security holder information required by Item 507 or Item 508, as applicable, of Regulation S-K of the SEC; and |
| • | we will acquire good, marketable and unencumbered title to the Original Notes being tendered, free and clear of all security interests, liens, restrictions, charges, encumbrances, conditional sale agreements or other obligations relating to their sale or transfer, and not subject to any adverse claim when the Original Notes are accepted by us. |
BY TENDERING YOUR ORIGINAL NOTES, YOU ARE DEEMED TO HAVE MADE THESE REPRESENTATIONS.
If you are a broker-dealer and you will receive Exchange Notes for your own account in exchange for Original Notes that were acquired as a result of market-making or other trading activities, you will be required to acknowledge that you will deliver a prospectus in connection with any resale of such Exchange Notes.
Return of Original Notes
If any tendered Original Notes are not accepted for any reason described here or if Original Notes are withdrawn or are submitted for a greater principal amount than you desire to exchange, those Original Notes will be returned, at our cost, to (i) the person who surrendered them or (ii) in the case of Original Notes surrendered by book-entry transfer, the Exchange Agent’s account at DTC. Any such Original Notes will be returned promptly to the tendering person or credited to an account maintained with DTC.
Book-Entry Transfer
The Exchange Agent will make a request to establish an account with respect to each series of Original Notes at DTC for purposes of facilitating the Exchange Offers within two business days after the date of this prospectus. Subject to the establishment of the account, any financial institution that is a participant in DTC’s systems may make book-entry delivery of Original Notes by causing DTC to transfer the Original Notes into the Exchange Agent’s account at DTC in accordance with DTC’s procedures for transfer. However, although delivery of Original Notes may be effected through book-entry transfer at DTC, you must transmit any other required documents to the Exchange Agent at the address appearing below under “—Exchange Agent” for its receipt on or prior to the Expiration Date.
Withdrawal of Tenders
Except as otherwise provided in this prospectus, you may withdraw your tender of Original Notes at any time prior to 5:00 p.m., New York City time, on the Expiration Date.
For a withdrawal to be effective, you should contact your bank or broker where your Original Notes are held and have them send an ATOP notice of withdrawal so that it is received by the Exchange Agent before 5:00 p.m., New York City time, on the Expiration Date. Such notice of withdrawal must:
| • | specify the name of the beneficial owner that tendered the Original Notes to be withdrawn; |
| • | identify the Original Notes to be withdrawn, including the CUSIP numbers and principal amount of the Original Notes tendered; and |
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| • | specify the name and number of an account at DTC to which such withdrawn Original Notes can be credited. |
We will determine in our sole discretion all questions as to the validity, form, eligibility and time of receipt of notices, and our determination shall be final and binding upon all parties. Any Original Notes so withdrawn will be deemed not to have been validly tendered for purposes of the Exchange Offers, and no Exchange Notes will be issued unless the Original Notes so withdrawn are validly re-tendered. Properly withdrawn Original Notes may be re-tendered by following one of the procedures described above under “—Procedures for Tendering” at any time prior to the Expiration Date.
Conditions
Notwithstanding any other provisions of the Exchange Offers, or any extension of the Exchange Offers, we will not be required to accept for exchange, or to exchange any Exchange Notes for, any Original Notes, and we may terminate any Exchange Offer or, at our option, modify, extend or otherwise amend any Exchange Offer, as provided in this prospectus before the acceptance of those Original Notes if, in our judgment, any of the following conditions has occurred or exists or has not been satisfied or waived prior to the Expiration Date:
| • | any law, statute, rule or regulation is proposed, adopted or enacted, or the staff of the SEC interprets any existing law, statute, rule or regulation in a manner, which, in our reasonable judgment, would materially impair our ability to proceed with the Exchange Offers; |
| • | any action or proceeding is instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offers that, in our reasonable judgment, would materially impair our ability to proceed with the Exchange Offers; or |
| • | any governmental approval that we deem necessary for the consummation of the Exchange Offers has not been obtained. |
If we determine in our sole discretion that any of these conditions are not satisfied, we may:
| • | terminate any Exchange Offer and promptly return all tendered Original Notes with respect to that Exchange Offer to the respective tendering holders; |
| • | modify, extend or otherwise amend any Exchange Offer and retain all tendered Original Notes with respect to that Exchange Offer until the Expiration Date, as extended, subject, however, to the withdrawal rights of holders; or |
| • | waive the unsatisfied conditions with respect to the Exchange Offers and accept all properly tendered Original Notes that have not been withdrawn; provided that if that waiver constitutes a material change to the Exchange Offers, we will promptly disclose the waiver by means of a prospectus supplement that will be distributed to the registered holders, and we will extend the Exchange Offers to the extent required by law. |
The conditions listed above are for our sole benefit, and we may assert these rights regardless of the circumstances giving rise to any of these conditions. We may waive these conditions in our reasonable discretion in whole or in part at any time and from time to time. If we fail at any time to exercise any of the above rights, the failure will not be deemed a waiver of these rights, and these rights will be deemed ongoing rights that may be asserted at any time and from time to time.
The Exchange Offers are not conditioned upon any minimum principal amount of Original Notes being submitted for exchange.
No letter of transmittal will be used in connection with the Exchange Offers. The valid electronic transmission of acceptance through ATOP will constitute delivery of Original Notes in connection with the Exchange Offers. There are no guaranteed delivery procedures for the Exchange Offers.
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Termination of Certain Rights
All registration rights under the Registration Rights Agreement benefiting the holders of the Original Notes will terminate when we consummate the Exchange Offers. That includes all rights to receive additional interest in the event of a registration default under the Registration Rights Agreement. In any case, we are under a continuing obligation, for a period of up to one year after the Expiration Date of these Exchange Offers, to use our commercially reasonable best efforts to keep the registration statement effective and to make this prospectus, and any amendment or supplement to this prospectus, available to any broker-dealer that requests copies for use in a resale.
Exchange Agent
We have appointed U.S. Bank Trust Company, National Association as the Exchange Agent for the Exchange Offers. You should direct any questions and requests for assistance and requests for additional copies of this prospectus to the Exchange Agent, addressed as follows:
By mail, hand or overnight courier:
U.S. Bank Trust Company, National Association, as Exchange Agent
8 Greenway Plaza, Suite 1100
Houston, TX 77046
Attention: Alejandro Hoyos
By facsimile:
(713) 235-9213
Confirm by telephone:
(713) 212-7576
U.S. Bank Trust Company, National Association also serves as trustee under the indenture governing the Notes.
Fees and Expenses
We will pay for the expenses of the Exchange Offers. The principal solicitation for tenders of Original Notes is being made by mail. However, additional solicitation may be made by facsimile transmission, e-mail, telephone or in person by our officers and regular employees.
We have not retained a dealer-manager in connection with the Exchange Offers and will not make any payments to brokers, dealers or others soliciting acceptances of the Exchange Offers. We will, however, pay the Exchange Agent reasonable and customary fees for its services and will reimburse it for its reasonable out-of-pocket expenses in connection with providing the services.
Transfer Taxes
You will not be obligated to pay any transfer taxes in connection with the tender of the Original Notes in the Exchange Offers unless you instruct us to issue Exchange Notes, or request that Original Notes not tendered or exchanged in the Exchange Offers be returned, to a person other than the tendering holder. In those cases, you will be responsible for the payment of any applicable transfer taxes.
Accounting Treatment
We will record the Exchange Notes at the same carrying value as the Original Notes as reflected in our accounting records on the date of exchange. Therefore, we will not recognize a gain or loss for accounting purposes.
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Consequence of Failure to Exchange
You do not have to participate in the Exchange Offers. You should carefully consider whether to accept the terms and conditions of the Exchange Offers. We urge you to consult your financial and tax advisors in deciding what action to take with respect to the Exchange Offers.
Original Notes that are not exchanged will remain “restricted securities” within the meaning of Rule 144(a)(3)(iii) of the Securities Act. Accordingly, they may not be offered, sold, pledged or otherwise transferred except:
| • | so long as the Original Notes are eligible for resale under Rule 144A under the Securities Act, to a person who the seller reasonably believes is a “qualified institutional buyer” within the meaning of Rule 144A, purchasing for its own account or for the account of a qualified institutional buyer in a transaction meeting the requirements of Rule 144A; |
| • | outside the U.S. to a foreign person in accordance with the requirements of Regulation S under the Securities Act; |
| • | pursuant to an exemption from registration under the Securities Act provided by Rule 144, if available; |
| • | pursuant to an effective registration statement under the Securities Act; or |
| • | pursuant to another available exemption from the registration requirements of the Securities Act, |
in each case in accordance with all other applicable securities laws.
Additionally, we expect that, following the consummation of the Exchange Offers, the trading market for the Original Notes will be negatively affected because of the limited amount of Original Notes expected to remain outstanding. See “Risk Factors” for more information about the risks of not participating in the Exchange Offers.
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DESCRIPTION OF THE EXCHANGE NOTES
We have summarized selected provisions of the Exchange Notes below. Phillips 66 Company will issue the Exchange Notes under the Indenture, dated as of May 5, 2022 (the “Indenture”), among Phillips 66 Company, as issuer, Phillips 66, as guarantor, and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”).
Each series of Exchange Notes is a separate series of senior debt securities of Phillips 66 Company. In this summary description of the Exchange Notes, unless we state otherwise or the context clearly indicates otherwise, all references to Phillips 66 Company mean Phillips 66 Company only and all references to Phillips 66 mean Phillips 66 only.
Capitalized terms used in this description but not otherwise defined have the meanings assigned to them in the Indenture.
The following description is a summary of certain of the provisions of the Exchange Notes and the Indenture. This summary is not complete and is qualified in its entirety by reference to the Indenture. You should carefully read the summary below and the Indenture in their entirety. A copy of the Indenture has been filed with the SEC as an exhibit to the registration statement of which this prospectus forms a part and is available to you as set forth under “Where You Can Find More Information.”
General
Each series of Exchange Notes will constitute a separate series of Phillips 66 Company’s senior debt securities under the Indenture. The Indenture will not limit the aggregate principal amount of Exchange Notes that Phillips 66 Company may issue under the Indenture and Phillips 66 Company may, without the consent of holders of outstanding Exchange Notes, issue additional Exchange Notes thereunder. In addition, the Indenture will not limit the amount of other unsecured debt that Phillips 66 Company or its subsidiaries may issue or incur.
The Exchange Notes will be issued only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The Exchange Notes will be unsecured and unsubordinated obligations of Phillips 66 Company, and will be fully and unconditionally guaranteed by Phillips 66. The Exchange Notes will rank equally with all other unsecured and unsubordinated indebtedness of Phillips 66 Company issued from time to time. The guarantees will rank equally with all other unsecured and unsubordinated indebtedness of Phillips 66.
Phillips 66 conducts substantially all of its operations through subsidiaries, and those subsidiaries generate substantially all of its operating income and cash flow. Accordingly, contractual provisions or laws, as well as its subsidiaries’ financial condition and operating requirements, may limit the ability of Phillips 66 and Phillips 66 Company to meet their obligations under their indebtedness, including the Exchange Notes. The subsidiaries of Phillips 66 and Phillips 66 Company are legally distinct and have no obligations to pay amounts due on the indebtedness of Phillips 66 or Phillips 66 Company, or to make funds available for such payment. In addition, subsidiaries of Phillips 66 and Phillips 66 Company will be permitted under the terms of the Indenture to incur additional indebtedness that may restrict or prohibit the making of distributions, the payment of dividends or the making of loans by such subsidiaries to Phillips 66 and Phillips 66 Company. The agreements governing future indebtedness of Phillips 66 Company’s subsidiaries may not permit those subsidiaries to provide Phillips 66 Company with sufficient dividends, distributions or loans to fund payments on the Exchange Notes when due.
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Principal, Maturity, Interest and Denomination
The Exchange Notes will have the following basic terms:
2.450% Senior Notes due 2024
| • | Title of the notes: 2.450% Senior Notes due 2024 |
| • | Total principal amount being issued: Up to $276,764,000 |
| • | Maturity date: December 15, 2024 |
| • | Interest rate: 2.450% |
| • | Interest payment dates: June 15 and December 15 |
| • | Regular record dates for interest: June 1 and December 1 |
| • | Redemption: see “—Optional Redemption” |
3.605% Senior Notes due 2025
| • | Title of the notes: 3.605% Senior Notes due 2025 |
| • | Total principal amount being issued: Up to $440,510,000 |
| • | Maturity date: February 15, 2025 |
| • | Interest rate: 3.605% |
| • | Interest payment dates: February 15 and August 15 |
| • | Regular record dates for interest: February 1 and August 1 |
| • | Redemption: see “—Optional Redemption” |
3.550% Senior Notes due 2026
| • | Title of the notes: 3.550% Senior Notes due 2026 |
| • | Total principal amount being issued: Up to $457,790,000 |
| • | Maturity date: October 1, 2026 |
| • | Interest rate: 3.550% |
| • | Interest payment dates: April 1 and October 1 |
| • | Regular record dates for interest: March 15 and September 15 |
| • | Redemption: see “—Optional Redemption” |
3.750% Senior Notes due 2028
| • | Title of the notes: 3.750% Senior Notes due 2028 |
| • | Total principal amount being issued: Up to $427,239,000 |
| • | Maturity date: March 1, 2028 |
| • | Interest rate: 3.750% |
| • | Interest payment dates: March 1 and September 1 |
| • | Regular record dates for interest: February 15 and August 15 |
| • | Redemption: see “—Optional Redemption” |
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3.150% Senior Notes due 2029
| • | Title of the notes: 3.150% Senior Notes due 2029 |
| • | Total principal amount being issued: Up to $570,040,000 |
| • | Maturity date: December 15, 2029 |
| • | Interest rate: 3.150% |
| • | Interest payment dates: June 15 and December 15 |
| • | Regular record dates for interest: June 1 and December 1 |
| • | Redemption: see “—Optional Redemption” |
4.680% Senior Notes due 2045
| • | Title of the notes: 4.680% Senior Notes due 2045 |
| • | Total principal amount being issued: Up to $441,900,000 |
| • | Maturity date: February 15, 2045 |
| • | Interest rate: 4.680% |
| • | Interest payment dates: February 15 and August 15 |
| • | Regular record dates for interest: February 1 and August 1 |
| • | Redemption: see “—Optional Redemption” |
4.900% Senior Notes due 2046
| • | Title of the notes: 4.900% Senior Notes due 2046 |
| • | Total principal amount being issued: Up to $605,161,000 |
| • | Maturity date: October 1, 2046 |
| • | Interest rate: 4.900% |
| • | Interest payment dates: April 1 and October 1 |
| • | Regular record dates for interest: March 15 and September 15 |
| • | Redemption: see “—Optional Redemption” |
Interest on each series of Exchange Notes will accrue from the last interest payment date on which interest was paid on the Original Notes surrendered in exchange therefor. The holders of the Original Notes that are accepted for exchange will be deemed to have waived the right to receive payment of accrued interest on those Original Notes from the last interest payment date on which interest was paid on such Original Notes to the date of issuance of the Exchange Notes. Interest on the Original Notes accepted for exchange will cease to accrue upon issuance of the Exchange Notes.
If any interest payment date, maturity date or redemption date for any series of Exchange Notes falls on a day that is not a business day, the payment will be made on the next business day, and no interest will accrue on that payment for the period from and after such interest payment date, maturity date or redemption date until such following business day. Interest on each series of Exchange Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.
Interest payable on any interest payment date or redemption date or on the maturity date of any series of Exchange Notes will be the amount of interest accrued from, and including, the immediately preceding interest payment date in respect of which interest has been paid or duly provided for on such series of Exchange Notes (or, if no interest has been paid or duly provided for on such series of Exchange Notes, from and including the
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most recent interest payment date of the corresponding series of Original Notes) to, but not including, such interest payment date, redemption date or maturity date, as the case may be.
The Exchange Notes will not be listed on any securities exchange or included in any automated quotation system.
Guarantee
Phillips 66 will fully and unconditionally guarantee on a senior unsecured basis the full and prompt payment of the principal of and any premium and interest on the Exchange Notes when and as the payment becomes due and payable, whether at maturity or otherwise. The guarantee will provide that in the event of a default in the payment of principal of or any premium or interest on any of the Exchange Notes, the holder of that Exchange Note or the Trustee may institute legal proceedings directly against Phillips 66 to enforce the guarantee without first proceeding against Phillips 66 Company. The guarantee will rank equally with all of Phillips 66’s other unsecured and unsubordinated debt from time to time outstanding. The obligations of Phillips 66 under its guarantee will be limited to the maximum amount as will result in the obligations of Phillips 66 under its guarantee not constituting a fraudulent transfer or conveyance.
Optional Redemption
Prior to the Applicable Par Call Date, Phillips 66 Company may redeem the Exchange Notes of any series at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| • | (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Exchange Notes matured on the Applicable Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus for each series of Exchange Notes, the Applicable Make-whole Spread, in each case less (b) interest accrued to the date of redemption, and |
| • | 100% of the principal amount of the Exchange Notes to be redeemed, |
plus, in either case, accrued and unpaid interest thereon to the redemption date.
On or after the Applicable Par Call Date, Phillips 66 Company may redeem the Exchange Notes of any series, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Exchange Notes of such series being redeemed plus accrued and unpaid interest thereon to the redemption date.
For purposes of the foregoing discussion of optional redemption, the following definitions are applicable:
“Applicable Make-whole Spread” means, for the following series of Exchange Notes, the number of basis points set forth opposite such series in the table below:
| Title of Series |
Make-whole Spread |
|||
| 2.450% Senior Notes due 2024 |
20 bps | |||
| 3.605% Senior Notes due 2025 |
25 bps | |||
| 3.550% Senior Notes due 2026 |
30 bps | |||
| 3.750% Senior Notes due 2028 |
25 bps | |||
| 3.150% Senior Notes due 2029 |
30 bps | |||
| 4.680% Senior Notes due 2045 |
30 bps | |||
| 4.900% Senior Notes due 2046 |
40 bps | |||
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“Applicable Par Call Date” means, for the following series of Exchange Notes, the date set forth opposite such series in the table below:
| Title of Series |
Par Call Date | |
| 2.450% Senior Notes due 2024 |
November 15, 2024 | |
| 3.605% Senior Notes due 2025 |
November 15, 2024 | |
| 3.550% Senior Notes due 2026 |
July 1, 2026 | |
| 3.750% Senior Notes due 2028 |
December 1, 2027 | |
| 3.150% Senior Notes due 2029 |
September 15, 2029 | |
| 4.680% Senior Notes due 2045 |
August 15, 2044 | |
| 4.900% Senior Notes due 2046 |
April 1, 2046 |
“Business Day” means, any day that is not a Saturday, a Sunday or a day on which banking institutions in any of The City of New York, New York; Houston, Texas or a Place of Payment (as defined in the Indenture) are authorized or obligated by law, regulation or executive order to remain closed.
“Treasury Rate” means, with respect to any redemption date, the yield determined by Phillips 66 Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by Phillips 66 Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the applicable redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, Phillips 66 Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the applicable redemption date to the Applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the Applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the applicable redemption date.
If on the third Business Day preceding the redemption date H.15 or any successor designation or publication is no longer published, Phillips 66 Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Applicable Par Call Date, as applicable. If there is no United States Treasury security maturing on the Applicable Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Applicable Par Call Date, one with a maturity date preceding the Applicable Par Call Date and one with a maturity date following the Applicable Par Call Date, Phillips 66 Company shall select the United States Treasury security with a maturity date preceding the Applicable Par Call Date. If there are two or more United States Treasury securities maturing on the Applicable Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, Phillips 66 Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the
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semiannual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
Phillips 66 Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 60 days before the redemption date to each holder of Exchange Notes to be redeemed.
In the case of a partial redemption, selection of the Exchange Notes for redemption will be made on a pro rata basis or, in the case of global notes, in accordance with the depositary’s procedures. No Exchange Notes of a principal amount of $2,000 or less will be redeemed in part. If any Exchange Note is to be redeemed in part only, the notice of redemption that relates to the Exchange Note will state the portion of the principal amount of the Exchange Note to be redeemed. A new Exchange Note in a principal amount equal to the unredeemed portion of the Exchange Note will be issued in the name of the holder of the Exchange Note upon surrender for cancellation of the original Exchange Note. For so long as the Exchange Notes are held by DTC, the redemption of the Exchange Notes shall be done in accordance with the policies and procedures of the depositary.
Unless Phillips 66 Company defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Exchange Notes or portions thereof called for redemption.
Ranking
The Exchange Notes will constitute senior unsecured debt of Phillips 66 Company and will rank equally with Phillips 66 Company’s other senior unsecured debt from time to time outstanding; senior to its subordinated debt from time to time outstanding; and effectively junior to its secured debt (to the extent of the collateral securing such debt) and to all debt and other liabilities of its subsidiaries, from time to time outstanding. Phillips 66’s guarantee of the Exchange Notes will rank equally with all of its other unsecured and unsubordinated debt from time to time outstanding; senior to its subordinated debt from time to time outstanding; and effectively junior to its secured debt (to the extent of the collateral securing such debt) and to all debt and other liabilities of its subsidiaries, other than Phillips 66 Company, from time to time outstanding.
As of December 31, 2022, Phillips 66 had $8.8 billion of senior unsecured notes outstanding guaranteed by Phillips 66 Company, and such notes and guarantees would have ranked equally in right of payment with the Exchange Notes and the related guarantees. Phillips 66 Company also has a $5 billion revolving credit facility which may be used for direct bank borrowings, as support for issuances of letters of credit, and as support for Phillips 66’s commercial paper program. Phillips 66 is the guarantor under the facility. At December 31, 2022, no borrowings were outstanding under the facility. For additional information regarding our indebtedness, please see Note 14—Debt, in the Notes to Consolidated Financial Statements in Item 8 of the 2022 Annual Report on Form 10-K.
Consolidation, Merger and Sale of Assets
The Indenture generally permits a consolidation or merger involving Phillips 66 or Phillips 66 Company. It also permits Phillips 66 or Phillips 66 Company to lease, transfer or dispose of all or substantially all of its assets. Each of Phillips 66 and Phillips 66 Company has agreed, however, that it will not consolidate with or merge into any entity (other than Phillips 66 or Phillips 66 Company, as applicable) or lease, transfer or dispose of all or substantially all of its assets to any entity (other than Phillips 66 or Phillips 66 Company, as applicable) unless:
| • | it is the continuing corporation; or |
| • | if it is not the continuing corporation, the resulting entity or transferee is organized and existing under the laws of any United States jurisdiction and assumes the performance of its covenants and obligations |
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| under the Indenture and, in the case of Phillips 66 Company, the due and punctual payments on the Exchange Notes or, in the case of Phillips 66, the performance of the related guarantees; |
| • | in either case, immediately after giving effect to the transaction, no default or event of default would occur and be continuing or would result from the transaction; and |
| • | Phillips 66 or Phillips 66 Company delivers an officers’ certificate and opinion of counsel to the Trustee stating that such consolidation, merger or sale of assets and any supplemental indentures comply with the Indenture and all conditions precedent set forth in the Indenture have been complied with and such supplemental indenture (if any) is the legal, valid and binding obligation of Phillips 66 and Phillips 66 Company. |
Upon any such consolidation, merger or asset lease, transfer or disposition involving Phillips 66 or Phillips 66 Company, the resulting entity or transferee will be substituted for Phillips 66 or Phillips 66 Company, as applicable, under the Indenture and the Exchange Notes. In the case of an asset transfer or disposition other than a lease, Phillips 66 or Phillips 66 Company, as applicable, will be released from the Indenture.
Limitation on Liens
Phillips 66 has agreed that it and its Principal Domestic Subsidiaries will issue, assume or guarantee Debt for borrowed money secured by a lien upon a Principal Property or shares of stock or Debt of any Principal Domestic Subsidiary only if the Exchange Notes are secured equally and ratably with or prior to the Debt secured by that lien. If the Exchange Notes are so secured, Phillips 66 has the option to secure any of its and its Subsidiaries’ other Debt or obligations equally and ratably with or prior to the Debt secured by the lien and, accordingly, equally and ratably with the Exchange Notes. This covenant has exceptions that permit:
| (a) | liens existing on the date Phillips 66 Company first issues the Exchange Notes; |
| (b) | liens on the property, assets, stock, equity or Debt of any entity existing at the time Phillips 66 or a Subsidiary acquires that entity or its property or at the time the entity becomes a Subsidiary or a Principal Domestic Subsidiary or at the time such entity is merged into or consolidated with Phillips 66 or any Subsidiary or at the time of a sale, lease or other disposition of the properties of an entity (or a division thereof) as an entirety or substantially as an entirety to Phillips 66 or a Subsidiary; |
| (c) | liens on assets either: |
| • | existing at the time of acquisition of the assets, |
| • | securing all or any portion of the cost of acquiring, constructing, improving, developing or expanding such assets, or |
| • | securing Debt incurred prior to, at the time of, or within 24 months after, the later of the acquisition, the completion of construction, improvement, development or expansion or the commencement of commercial operation of such assets, for the purpose (in the case of this bullet point) of either financing all or any part of the purchase price of such assets or financing all or any part of the cost of construction, improvement, development or expansion of any such assets; |
| (d) | liens in favor of Phillips 66 or any Subsidiary; |
| (e) | liens securing industrial development, pollution control or other revenue bonds issued or guaranteed by the United States of America, or any State, or any department, agency, instrumentality or political subdivision of either; |
| (f) | liens on personal property, other than shares of stock or Debt of any Principal Domestic Subsidiary, securing loans maturing not more than one year from the date of the creation thereof; |
| (g) | statutory liens or landlords’, carriers’, warehousemans’, mechanics’, suppliers’, materialmen’s, repairmen’s or other like liens arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate proceedings; and |
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| (a) | any extensions, substitutions, replacements or renewals of the above-described liens or any Debt secured by these liens provided that: |
| • | such new lien shall be limited to all or part of the same property that secured the original lien, plus improvements on such property, and |
| • | the principal amount of Debt secured by the new lien and not otherwise authorized by items (a) through (g) above or otherwise permitted does not materially exceed the principal amount of Debt so secured plus any premium or fee payable in connection with any such extension, substitution, replacement or renewal. |
In addition, without securing the Exchange Notes as described above, Phillips 66 and its Principal Domestic Subsidiaries may issue, assume or guarantee Debt that this covenant would otherwise restrict in a total principal amount that, when added to all other outstanding Debt of Phillips 66 and its Principal Domestic Subsidiaries that this covenant would otherwise restrict and the total amount of Attributable Debt deemed outstanding for Sale/Leaseback Transactions, does not at any one time exceed a “basket” equal to 15% of Consolidated Adjusted Net Assets. When calculating this total principal amount, we exclude from the calculation Attributable Debt from Sale/Leaseback Transactions in connection with which Phillips 66 or a Subsidiary has purchased property or retired or defeased Debt as described in clause (b) below under “Limitation on Sale/Leaseback Transactions.”
The following type of transaction does not create “Debt” secured by “liens” within the meaning of this covenant: the mortgage or pledge of any property of Phillips 66 or any Subsidiary in favor of the United States or any State, or any department, agency, instrumentality or political subdivision of either, to secure partial, progress, advance or other payments pursuant to the provisions of any contract or statute.
Limitation on Sale/Leaseback Transactions
Phillips 66 has agreed that it and any of its Principal Domestic Subsidiaries will enter into a Sale/Leaseback Transaction with any Person (other than Phillips 66 or a Subsidiary) only if at least one of the following applies:
| (a) | Phillips 66 or that Principal Domestic Subsidiary could incur Debt in a principal amount equal to the Attributable Debt for that Sale/Leaseback Transaction and, without violating the “Limitation on Liens” covenant, could secure that Debt by a lien on the property to be leased without equally and ratably securing the Exchange Notes and any other debt securities issued under the Indenture. |
| (b) | Within a period commencing 12 months prior to the consummation of such Sale/Leaseback Transaction and ending 12 months after the consummation thereof, Phillips 66 or any Subsidiary shall have applied an amount equal to all or a portion of the net proceeds of such Sale/Leaseback Transaction either: |
| • | to the voluntary defeasance or retirement of any of the Exchange Notes or any other debt securities issued under the Indenture or any Funded Debt, or |
| • | to the acquisition, construction, improvement or expansion of one or more Principal Properties. |
To the extent that any net proceeds are not applied for the purposes described in (b), such proceeds will be subject to the limitation described in (a). For purposes of these calculations, the net proceeds of the Sale/Leaseback Transaction means the net proceeds of the sale or transfer of the property leased in the Sale/Leaseback Transaction (or, if greater, the fair value of that property at the time of the Sale/Leaseback Transaction as determined by Phillips 66’s board of directors).
Glossary
“Attributable Debt” means the present value of the rental payments during the remaining term of the lease included in the Sale/Leaseback Transaction. To determine that present value, we use a discount rate equal to the lease rate of the Sale/Leaseback Transaction. For these purposes, rental payments do not include any amounts required to be paid for taxes, maintenance, repairs, insurance, assessments, utilities, operating and labor costs and
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other items that do not constitute payments for property rights. In the case of any lease that the lessee may terminate by paying a penalty, if the net amount (including payment of the penalty) would be reduced if the lessee terminated the lease on the first date that it could be terminated, then this lower net amount will be used.
“Consolidated Adjusted Net Assets” means the total amount of assets of Phillips 66 and its consolidated subsidiaries less:
| • | all current liabilities (excluding the amount of those liabilities that are by their terms extendable or renewable at Phillips 66’s option to a date more than 12 months after the date of calculation and excluding current maturities of long-term debt); and |
| • | total prepaid expenses and deferred charges. |
Phillips 66 will calculate its Consolidated Adjusted Net Assets based on its most recent quarterly balance sheet.
“Debt” means all notes, bonds, debentures or other similar evidences of debt for money borrowed.
“Funded Debt” means all Debt (including Debt incurred under any revolving credit, letter of credit or working capital facility) that matures on or is renewable to a date more than one year after the date the Debt is originally incurred.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, incorporated or unincorporated association, joint-stock company, trust, unincorporated organization, or government or other agency, instrumentality or political subdivision thereof or other entity of any kind.
“Principal Domestic Subsidiary” means any Subsidiary (1) that has substantially all its assets in the United States, (2) that owns a Principal Property and (3) in which Phillips 66’s capital investment, together with the outstanding balance of any intercompany loans to that Subsidiary and any debt of that Subsidiary guaranteed by Phillips 66 or any other Subsidiary, exceeds $100 million. Phillips 66 Company is a Principal Domestic Subsidiary of Phillips 66.
“Principal Property” means any refinery or manufacturing plant located in the United States, in each case owned by Phillips 66 or a Subsidiary. This term excludes any refinery or plant that in the opinion of Phillips 66’s board of directors is not of material importance to the total business conducted by Phillips 66 and its consolidated subsidiaries. This term also excludes any transportation or marketing facilities or assets.
“Sale/Leaseback Transaction” means any arrangement with any Person under which Phillips 66 or a Subsidiary leases any Principal Property that Phillips 66 or that Subsidiary has sold or transferred or will sell or transfer to that Person. This term excludes the following:
| • | temporary leases for a term, including renewals at the option of the lessee, of not more than three years; |
| • | intercompany leases; |
| • | leases of a Principal Property executed by the time of, or within 12 months after the latest of, the acquisition, the completion of construction or improvement, or the commencement of commercial operation of the Principal Property; and |
| • | arrangements under any provision of law with an effect similar to the former Section 168(f)(8) of the Internal Revenue Code of 1954. |
“Subsidiary” means an entity at least a majority of the outstanding voting stock of which is owned, directly or indirectly, by Phillips 66 or by one or more other Subsidiaries, or by Phillips 66 and one or more other Subsidiaries.
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Reports
If Phillips 66 or Phillips 66 Company is subject to the requirements of Section 13 or 15(d) of the Exchange Act, Phillips 66 or Phillips 66 Company, as the case may be, shall file with the Trustee, within 15 days after it files the same with the SEC, copies of the annual and quarterly reports and the information, documents and other reports (or such portions of any of the foregoing as the SEC may by rules and regulations prescribe) that Phillips 66 or Phillips 66 Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. Phillips 66 and Phillips 66 Company shall also comply with the provisions of the Trust Indenture Act Section 314(a). Delivery of such reports, information and documents to the Trustee shall be for informational purposes only, and the Trustee’s receipt thereof will not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the compliance of Phillips 66 Company with any of its covenants under the Indenture (as to which the Trustee is entitled to rely exclusively on an officers’ certificate). The Trustee will not be obligated to monitor or confirm, on a continuing basis or otherwise, Phillips 66’s or Phillips 66 Company’s compliance with the covenants in the Indenture with respect to the filing of such reports and such information, documents and other reports with the SEC.
If neither Phillips 66 or Phillips 66 Company is subject to the requirements of Section 13 or 15(d) of the Exchange Act, Phillips 66 or Phillips 66 Company will furnish to all holders of the Exchange Notes and prospective purchasers of Exchange Notes designated by the holders of the Exchange Notes, promptly upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) promulgated under the Securities Act.
Events of Default
The following are events of default with respect to any series of Exchange Notes:
| • | failure to pay interest on that series of Exchange Notes for 30 days when due; |
| • | failure to pay principal of or any premium on that series of Exchange Notes when due; |
| • | failure to pay any sinking fund payment for 30 days when due; |
| • | failure to comply with any covenant or agreement in that series of Exchange Notes or the Indenture (other than an agreement or covenant that has been included in the Indenture solely for the benefit of other series of Exchange Notes) for 90 days after written notice by the Trustee or by the holders of at least 25% in principal amount of the outstanding Exchange Notes that are affected by that failure; and |
| • | specified events involving bankruptcy, insolvency or reorganization of Phillips 66 and Phillips 66 Company. |
A default under one series of Exchange Notes will not necessarily be a default under another series. The Trustee may withhold notice to the holders of Exchange Notes of any default or event of default (except in any payment on the Exchange Notes) if the Trustee in good faith considers it in the interest of the holders of the Exchange Notes to do so.
If an event of default for any series of Exchange Notes occurs and is continuing, the Trustee or the holders of at least 25% in principal amount of the series affected by the default may declare the principal of and all accrued and unpaid interest on those debt securities to be due and payable. If an event of default relating to certain events of bankruptcy, insolvency or reorganization occurs, the principal of and interest on all the Exchange Notes will become immediately due and payable without any action on the part of the Trustee or any holder. The holders of a majority in principal amount of the Exchange Notes of the series affected by the default may in some cases rescind this accelerated payment requirement.
A holder of an Exchange Note may pursue any remedy under the Indenture only if:
| • | the holder gives the Trustee written notice of a continuing event of default with respect to that series; |
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| • | the holders of at least 25% in principal amount of the outstanding Exchange Notes of that series make a written request to the Trustee to pursue the remedy; |
| • | the holders offer to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense; |
| • | the Trustee does not comply with the request within 60 days after receipt of the request and offer of indemnity; and |
| • | during that 60-day period, the holders of a majority in principal amount of the Exchange Notes of that series do not give the Trustee a direction inconsistent with the request. |
The Trustee may refuse to exercise any rights or powers unless it receives indemnity satisfactory to it against any cost, liability or expense. This provision does not, however, affect the right of a holder of an Exchange Note to sue for enforcement of any overdue payment.
In most cases, holders of a majority in principal amount of the outstanding Exchange Notes of a series (or of all debt securities issued under the Indenture that are affected, voting as one class) may direct the time, method and place of:
| • | conducting any proceeding for any remedy available to the Trustee; and |
| • | exercising any trust or power conferred on the Trustee relating to or arising as a result of an event of default. |
The Indenture requires Phillips 66 and Phillips 66 Company to file each year with the Trustee a written statement as to their compliance with the covenants contained in the Indenture.
Modification of the Indenture
The Indenture may be amended or supplemented with respect to the Exchange Notes of any series if the holders of a majority in principal amount of the series that are affected by the amendment or supplement consent to it. Without the consent of the holder of each Exchange Note affected, however, no modification may:
| • | reduce the amount of Exchange Notes whose holders must consent to an amendment, supplement or waiver; |
| • | reduce the rate of or change the time for payment of interest on the Exchange Note; |
| • | reduce the principal of the Exchange Note or change its stated maturity; |
| • | reduce any premium payable on the redemption of the Exchange Note or change the time at which the Exchange Note may be redeemed; |
| • | make payments on the Exchange Note payable in currency other than as originally stated in the Exchange Note; |
| • | impair the holder’s right to institute suit for the enforcement of any payment on or with respect to the Exchange Note; |
| • | make any change in the percentage of principal amount of Exchange Notes of any series necessary to waive compliance with certain provisions of the Indenture applicable to such series or to make any change in the provision related to modification; or |
| • | waive a continuing default or event of default regarding any payment on the Exchange Notes. |
The Indenture may be amended or supplemented or any provision may be waived without the consent of any holders of Exchange Notes in certain circumstances, including:
| • | to cure any ambiguity, omission, defect or inconsistency; |
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| • | to provide for the assumption of the obligations under the Indenture by a successor upon any merger, consolidation or asset transfer permitted under the Indenture; |
| • | to provide for uncertificated debt securities in addition to or in place of certificated debt securities or to provide for the issuance of bearer debt securities (with or without coupons); |
| • | to provide any security for, any guarantees of or any additional obligors on any series of Exchange Notes; |
| • | to comply with any requirement to effect or maintain the qualification of the Indenture under the Trust Indenture Act; |
| • | to add covenants that would benefit the holders of any series of Exchange Notes or to surrender any rights Phillips 66 or Phillips 66 Company has under the Indenture; |
| • | to add events of default with respect to any series of Exchange Notes; and |
| • | to make any change that does not adversely affect any outstanding debt securities of any series issued under the Indenture in any material respect. |
The holders of a majority in principal amount of the outstanding Exchange Notes of any series may waive any existing or past default or event of default with respect to such series of Exchange Notes. Those holders may not, however, waive any default or event of default in any payment on any Exchange Notes or compliance with a provision that cannot be amended or supplemented without the consent of each holder affected.
Discharge, Defeasance and Covenant Defeasance
Discharge. Phillips 66 Company and Phillips 66 may be discharged from their obligations under the Indenture with respect to one or more series of Exchange Notes when:
| • | all outstanding Exchange Notes of such series theretofore authenticated and issued (other than destroyed, lost or stolen Exchange Notes that have been replaced or paid) have been delivered to the Trustee for cancellation; or |
| • | all outstanding Exchange Notes of such series not theretofore delivered to the Trustee for cancellation (i) have become due and payable, or (ii) will become due and payable at their stated maturity within one year or (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of Phillips 66 Company, |
and, in the case of clause (i), (ii) or (iii) above, Phillips 66 or Phillips 66 Company has irrevocably deposited or caused to be deposited with the Trustee as funds (immediately available to the holders in the case of clause (i)) in trust for such purpose (x) cash in an amount, or (y) government obligations, maturing as to principal and interest at such times and in such amounts as will ensure the availability of cash in an amount or (z) a combination thereof, which will be sufficient without consideration of any investment of interest, in the opinion (in the case of clauses (y) and (z)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness on the Exchange Notes of such series for principal and interest to the date of such deposit (in the case of Exchange Notes that have become due and payable) or for principal, premium, if any, and interest to the stated maturity or redemption date, as the case may be.
Phillips 66 Company will be required to deliver to the Trustee an officer’s certificate stating that all conditions precedent to satisfaction and discharge of the Indenture with respect to the Exchange Notes of such series have been complied with, together with an opinion of counsel to the same effect.
Defeasance. When we use the term defeasance, we mean discharge from some or all of the obligations of Phillips 66 Company and Phillips 66 under the Indenture. If any combination of funds or government securities
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are deposited with the Trustee sufficient to make payments on a series of the Exchange Notes on the dates those payments are due and payable, then, at Phillips 66 Company’s option, either of the following will occur:
| • | Phillips 66 Company and Phillips 66 will be discharged from their obligations with respect to the Exchange Notes of that series and the related guarantees (“legal defeasance”); or |
| • | Phillips 66 Company and Phillips 66 will no longer have any obligation to comply with the restrictive covenants, the merger covenant and other specified covenants under the Indenture, and the related events of default will no longer apply (“covenant defeasance”). |
If a series of Exchange Notes is defeased, the holders of the series affected will not be entitled to the benefits of the Indenture, except for obligations to register the transfer or exchange of Exchange Notes, replace stolen, lost or mutilated Exchange Notes or maintain paying agencies and hold moneys for payment in trust. In the case of covenant defeasance, the obligation of Phillips 66 Company to pay principal, premium and interest on the Exchange Notes and Phillips 66’s guarantees of the payments will also survive.
Phillips 66 Company will be required to deliver to the Trustee an opinion of counsel that the deposit and related defeasance would not cause the holders of the applicable series of Exchange Notes to recognize income, gain or loss for U.S. federal income tax purposes. If Phillips 66 Company elects legal defeasance, that opinion of counsel must be based upon a ruling from the U.S. Internal Revenue Service or a change in law to that effect.
Trustee
U.S. Bank Trust Company, National Association is the trustee under the Indenture. U.S. Bank Trust Company, National Association and its affiliates perform certain commercial banking services for us for which they receive customary fees and are lenders under various outstanding credit facilities of Phillips 66 or its subsidiaries or affiliates.
If an event of default occurs under the Indenture and is continuing, the Trustee will be required to use the degree of care and skill of a prudent person in the conduct of that person’s own affairs. The Trustee will become obligated to exercise any of its powers under the Indenture at the request of any of the holders of the Exchange Notes issued under the Indenture only after those holders have offered the Trustee indemnity satisfactory to it.
The Indenture contains limitations on the right of the Trustee, if it becomes a creditor of Phillips 66 or Phillips 66 Company, to obtain payment of claims or to realize on certain property received for any such claim, as security or otherwise. The Trustee is permitted to engage in other transactions with Phillips 66 and Phillips 66 Company. If, however, it acquires any conflicting interest, it must eliminate that conflict or resign within 90 days after ascertaining that it has a conflicting interest and after the occurrence of a default under the Indenture, unless the default has been cured, waived or otherwise eliminated within the 90-day period.
Paying Agents and Transfer Agents
The Trustee will be appointed as paying agent and transfer agent for the Exchange Notes. Payments on the Exchange Notes will be made in U.S. dollars at the office of the Trustee and any paying agent. At Phillips 66 Company’s option, however, payments may be made by wire transfer for Exchange Notes held in book-entry form or by wire transfer or by check mailed to the address of the person entitled to the payment as it appears in the security register.
Other
Phillips 66 Company will make all payments on the Exchange Notes without withholding or deducting any taxes or other governmental charges imposed by a United States jurisdiction, unless it is required to do so by applicable law. A holder of the Exchange Notes, however, may be subject to U.S. federal income taxes in respect of the Exchange Notes, and taxes may be withheld on certain payments on the Exchange Notes, generally in the
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same manner as applied to such holder’s ownership of the Original Notes. If Phillips 66 Company is required to withhold taxes, it will not pay any additional, or gross up, amounts with respect to the withholding or deduction.
Phillips 66 Company may at any time purchase Exchange Notes on the open market or otherwise at any price. Phillips 66 Company will surrender all Exchange Notes that it redeems or purchases to the Trustee for cancellation. Phillips 66 Company may not reissue or resell any of these Exchange Notes.
Governing Law
The Indenture and the Original Notes are, and the Exchange Notes will be, governed by and construed in accordance with the law of the State of New York.
Book-Entry Delivery and Form
Except as set forth below, the Exchange Notes will be issued in registered, global form, which we may also refer to as the “Global Notes.”
The Global Notes will be deposited upon issuance with the Trustee as custodian for DTC, in New York, New York, and registered in the name of DTC’s nominee, Cede & Co., in each case for credit to an account of a direct or indirect participant in DTC as described below. Beneficial interests in the Global Notes may be held through Euroclear and Clearstream (as indirect participants in DTC).
Except as set forth below, the Global Notes may be transferred, in whole but not in part, only to another nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in the Global Notes may not be exchanged for notes in registered, certificated form (“Certificated Notes”) except in the limited circumstances described below. See “—Exchange of Global Notes for Certificated Notes.”
Transfers of beneficial interests in the Global Notes will be subject to the applicable rules and procedures of DTC and its direct or indirect participants (including, if applicable, those of Euroclear and Clearstream), which may change from time to time.
Depository Procedures
The following description of the operations and procedures of DTC, Euroclear and Clearstream is provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to changes by them. We take no responsibility for these operations and procedures and urge investors to contact the system or their participants directly to discuss these matters.
DTC has advised us that DTC is a limited-purpose trust company created to hold securities for its participating organizations (collectively, the “Participants”) and to facilitate the clearance and settlement of transactions in those securities between Participants through electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Access to DTC’s system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, the “Indirect Participants”). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Participants or the Indirect Participants. The ownership interests in, and transfers of ownership interests in, each security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants. Any notices required to be given to the holders while the Exchange Notes are global securities will be given only to DTC.
DTC has also advised us that, pursuant to procedures established by it, ownership of interests in the Global Notes will be shown on, and the transfer of ownership of these interests will be effected only through, records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interests in the Global Notes).
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Investors in the Global Notes who are Participants may hold their interests therein directly through DTC. Investors in the Global Notes who are not Participants may hold their interests therein indirectly through organizations (including Euroclear and Clearstream) that are Participants. Euroclear and Clearstream may hold interests in the Global Notes on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositories, which are Euroclear Bank S.A./N.V., as operator of Euroclear, and Citibank, N.A., as operator of Clearstream. All interests in a Global Note, including those held through Euroclear or Clearstream, may be subject to the procedures and requirements of DTC. Those interests held through Euroclear or Clearstream may also be subject to the procedures and requirements of such systems.
The laws of some jurisdictions may require that certain persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interests in a Global Note to such persons will be limited to that extent. Because DTC can act only on behalf of Participants, which in turn act on behalf of Indirect Participants, the ability of a person having beneficial interests in a Global Note to pledge such interests to persons that do not participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of a physical certificate evidencing such interests.
Except as described below, owners of an interest in the Global Notes will not be entitled to have Exchange Notes registered in their names, will not receive physical delivery of Certificated Notes and will not be considered the registered owners or “Holders” thereof under the Indenture for any purpose.
Payments in respect of the principal of, and interest and premium, if any, on, a Global Note registered in the name of DTC or its nominee will be payable to DTC in its capacity as the registered Holder under the Indenture. Under the terms of the Indenture, Phillips 66 Company, Phillips 66 and the Trustee will treat the persons in whose names the Exchange Notes, including the Global Notes, are registered as the owners of the Exchange Notes for the purpose of receiving payments and for all other purposes. Consequently, none of Phillips 66 Company, Phillips 66, the Trustee or any agent of any of them has or will have any responsibility or liability for:
| (1) | any aspect of DTC’s records or any Participant’s or Indirect Participant’s records relating to or payments made on account of beneficial ownership interests in the Global Notes or for maintaining, supervising or reviewing any of DTC’s records or any Participant’s or Indirect Participant’s records relating to the beneficial ownership interests in the Global Notes; or |
| (2) | any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants. |
DTC has advised us that its current practice, upon receipt of any payment in respect of securities such as the Exchange Notes (including principal and interest), is to credit the accounts of the relevant Participants with the payment on the payment date unless DTC has reason to believe it will not receive payment on such payment date. Each relevant Participant is credited with an amount proportionate to its beneficial ownership of an interest in the principal amount of the relevant security as shown on the records of DTC. Payments by the Participants and the Indirect Participants to the beneficial owners of Exchange Notes will be governed by standing instructions and customary practices and will be the responsibility of the Participants or the Indirect Participants and will not be the responsibility of DTC, the Trustee, Phillips 66 Company or Phillips 66. None of Phillips 66 Company, Phillips 66 or the Trustee will be liable for any delay by DTC or any of its Participants in identifying the beneficial owners of the Exchange Notes, and Phillips 66 Company, Phillips 66 and the Trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes.
Transfers between Participants will be effected in accordance with DTC’s procedures, and will be settled in same-day funds, and transfers between participants in Euroclear and Clearstream will be effected in accordance with their respective rules and operating procedures.
Cross-market transfers between the Participants in DTC, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected through DTC in accordance with DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by its depositary; however, such cross-market transactions will
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require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (Brussels time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant Global Note in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear participants and Clearstream participants may not deliver instructions directly to the depositories for Euroclear or Clearstream. DTC has advised us that it will take any action permitted to be taken by a Holder of Exchange Notes only at the direction of one or more Participants to whose account DTC has credited the interests in the Global Notes and only in respect of such portion of the aggregate principal amount of the notes as to which such Participant or Participants has or have given such direction. However, if there is an Event of Default under the Exchange Notes, DTC reserves the right to exchange the Global Notes for Certificated Notes, and to distribute such Exchange Notes to its Participants.
Although DTC, Euroclear and Clearstream have agreed to the foregoing procedures to facilitate transfers of interests in the Global Notes among participants in DTC, Euroclear and Clearstream, they are under no obligation to perform or to continue to perform such procedures, and may discontinue such procedures at any time. None of Phillips 66 Company, Phillips 66 or the Trustee or any of their respective agents will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
Exchange of Global Notes for Certificated Notes
A Global Note is exchangeable for Certificated Notes in minimum denominations of $2,000 and in integral multiples of $1,000 in excess of $2,000, if:
| (1) | DTC (a) notifies Phillips 66 Company that it is unwilling or unable to continue as depositary for the Global Note or (b) has ceased to be a clearing agency registered under the Exchange Act and in either event Phillips 66 Company fails to appoint a successor depositary within 90 days; |
| (2) | there has occurred and is continuing an Event of Default and DTC notifies the Trustee of its decision to exchange the Global Note for Certificated Notes; or |
| (3) | Phillips 66 Company determines not to have the Exchange Notes represented by a Global Note. |
Beneficial interests in a Global Note may also be exchanged for Certificated Notes in the other limited circumstances permitted by the Indenture, including if an affiliate of ours acquires such interests. In all cases, Certificated Notes delivered in exchange for any Global Note or beneficial interests in Global Notes will be registered in the names, and issued in any approved denominations, requested by or on behalf of the depositary (in accordance with its customary procedures).
Exchange of Certificated Notes for Global Notes
Certificated Notes may not be exchanged for beneficial interests in any Global Note.
Same-Day Settlement and Payment
Phillips 66 Company will make payments in respect of the Exchange Notes represented by the Global Notes (including principal, premium, if any, and interest) by wire transfer of immediately available funds to the accounts specified by the Global Note Holder. Phillips 66 Company will make all payments of principal, interest and premium, if any, with respect to Certificated Notes by wire transfer of immediately available funds to the accounts specified by the Holders of the Certificated Notes or, if no such account is specified, by mailing a check to each such Holder’s registered address. The Exchange Notes represented by the Global Notes are expected to
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be eligible to trade in DTC’s same-day funds settlement system, and any permitted secondary market trading activity in such Exchange Notes will, therefore, be required by DTC to be settled in immediately available funds. We expect that secondary trading in any Certificated Notes will also be settled in immediately available funds.
Because of time zone differences, the securities account of a Euroclear or Clearstream participant purchasing an interest in a Global Note from a Participant will be credited, and any such crediting will be reported to the relevant Euroclear or Clearstream participant, during the securities settlement processing day (which must be a business day for Euroclear and Clearstream) immediately following the settlement date of DTC. DTC has advised us that cash received in Euroclear or Clearstream as a result of sales of interests in a Global Note by or through a Euroclear or Clearstream participant to a Participant will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTC’s settlement date.
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Each broker-dealer that receives Exchange Notes for its own account pursuant to the Exchange Offers must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Notes received in exchange for Original Notes that were acquired by such broker-dealer as a result of market-making or other trading activities. Phillips 66 Company and Phillips 66 have agreed that, for a period of up to 180 days after the Expiration Date of the Exchange Offers, if requested by one or more such broker-dealers, Phillips 66 Company and Phillips 66 will amend or supplement this prospectus in order to expedite or facilitate the disposition of any Exchange Notes by any such broker-dealers.
Phillips 66 Company will not receive any proceeds from any sale of Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers for their own account pursuant to the Exchange Offers may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such Exchange Notes. Any broker-dealer that resells Exchange Notes that were received by it for its own account pursuant to the Exchange Offers, and any broker or dealer that participates in a distribution of such Exchange Notes may be deemed to be an “underwriter” within the meaning of the Securities Act, and any profit on any such resale of Exchange Notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. By acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date of the Exchange Offers, Phillips 66 Company and Phillips 66 will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents. Phillips 66 Company has agreed to pay certain expenses incident to the Exchange Offers (including the expenses of one counsel for the holders of the Exchange Notes) other than commissions or concessions of any brokers or dealers, and Phillips 66 Company and Phillips 66 will indemnify the holders of the Exchange Notes (including any broker-dealers) against certain liabilities pursuant to the Registration Rights Agreement, including liabilities under the Securities Act.
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MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a general summary of certain material U.S. federal income tax considerations relating to the exchange of Original Notes for Exchange Notes in the Exchange Offers. It does not purport to contain a complete analysis of all the potential tax considerations relating to the Exchange Offers. This summary is limited to holders of Original Notes who hold the Original Notes as “capital assets” within the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended (the “Code”) (generally, property held for investment). This discussion is based upon the Code, the Treasury Regulations promulgated thereunder, judicial authorities and published positions of the Internal Revenue Service (the “IRS”), all as currently in effect, and all of which are subject to change or differing interpretations possibly with retroactive effect, and any such change or differing interpretation could affect the accuracy of the statements and conclusions set forth herein.
This summary is provided for general information purposes only and does not purport to address all of the U.S. federal income tax consequences and considerations that may be relevant to a particular holder in light of such holder’s particular facts and circumstances. Additionally, it does not apply to holders that are subject to special treatment under U.S. federal income tax laws, such as, for example, banks or other financial institutions, insurance companies, regulated investment companies, real estate investment trusts or mutual funds, holders liable for the alternative minimum tax, certain former citizens or former long-term residents of the United States, U.S. persons (as defined under the Code) having a “functional currency” other than the U.S. dollar, tax-exempt organizations; dealers in securities or currencies, entities or arrangements treated as partnerships for U.S. federal income tax purposes or other flow-through entities (or investors therein), subchapter S corporations, retirement plans, individual retirement accounts or other tax-deferred accounts, traders in securities that elect to use a mark to market method of accounting, “controlled foreign corporations,” “passive foreign investment companies,” or holders that hold Original Notes as part of a straddle, hedge, constructive sale, conversion transaction or other integrated or risk reduction transaction. Finally, this summary does not address any tax consequences under U.S. federal tax laws other than those pertaining to income tax, and also does address any considerations under any state, local or foreign tax laws.
Phillips 66 Company has not sought, and will not obtain, an IRS ruling on any U.S. federal income tax consequences relating to the Exchange Offers. Accordingly, no assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to conclusions expressed below.
If a partnership or other entity or arrangement treated as a partnership for U.S. federal income tax purposes holds Original Notes, the tax treatment of a person treated as a partner in such partnership for U.S. federal income tax purposes generally will depend upon the status of the partner and the activities of the partnership. Such partnerships and partners in such partnerships should consult their tax advisors about the tax consequences of the exchange to them.
Consequences of Tendering Original Notes for Exchange Notes
The exchange of Original Notes for Exchange Notes in the Exchange Offers will not constitute a taxable transaction for U.S. federal income tax purposes. Accordingly, you will not recognize gain or loss upon the exchange of Original Notes for Exchange Notes. Furthermore, your adjusted tax basis in the Exchange Notes will be the same as your adjusted tax basis in the Original Notes surrendered in exchange therefor immediately before the exchange, and your holding period in the Exchange Notes will include your holding period for the Original Notes exchanged. You are urged to consult with your own tax advisor as to all of the tax consequences to you of the exchange of Original Notes for Exchange Notes in light of your particular facts and circumstances, including the applicability and effect of any U.S. federal, state, local, foreign or other tax laws.
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The validity of the offered securities will be passed upon for us by Bracewell LLP, Houston, Texas, our outside counsel.
The consolidated financial statements of Phillips 66 appearing in Phillips 66’s Annual Report (Form 10-K) for the year ended December 31, 2022, and the effectiveness of Phillips 66’s internal control over financial reporting as of December 31, 2022, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference, which as to the year ended December 31, 2022, are based in part on the report of Deloitte & Touche LLP, independent registered public accounting firm. The financial statements of DCP Midstream, LP and its consolidated subsidiaries (consolidated with the financial statements of Phillips 66, but not presented separately within the Phillips 66 Annual Report on Form 10-K) as of and for the period ended December 31, 2022, have been audited by Deloitte & Touche LLP, as stated in their report, which is incorporated herein by reference. The consolidated financial statements of Phillips 66, referred to above, are incorporated herein by reference in reliance upon the respective reports given upon the authority of such firms as experts in accounting and auditing.
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PHILLIPS 66 COMPANY
PROSPECTUS
, 2023
Offers to Exchange
up to $276,764,000 aggregate principal amount of new 2.450% Senior Notes due 2024
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 2.450% Senior Notes due 2024 originally issued May 5, 2022,
up to $440,510,000 aggregate principal amount of new 3.605% Senior Notes due 2025
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 3.605% Senior Notes due 2025 originally issued May 5, 2022,
up to $457,790,000 aggregate principal amount of new 3.550% Senior Notes due 2026
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 3.550% Senior Notes due 2026 originally issued May 5, 2022,
up to $427,239,000 aggregate principal amount of new 3.750% Senior Notes due 2028
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 3.750% Senior Notes due 2028 originally issued May 5, 2022,
up to $570,040,000 aggregate principal amount of new 3.150% Senior Notes due 2029
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 3.150% Senior Notes due 2029 originally issued May 5, 2022,
up to $441,900,000 aggregate principal amount of new 4.680% Senior Notes due 2045
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 4.680% Senior Notes due 2045 originally issued May 5, 2022, and
up to $605,161,000 aggregate principal amount of new 4.900% Senior Notes due 2046
registered under the Securities Act of 1933, as amended,
for any and all outstanding unregistered 4.900% Senior Notes due 2046 originally issued May 5, 2022
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 20. | Indemnification of Directors and Officers |
Delaware law permits a corporation to adopt a provision in its certificate of incorporation eliminating or limiting the personal liability of a director, but not an officer in his or her capacity as such, to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that such provision shall not limit the liability of a director for (1) any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (3) liability under Section 174 of the DGCL for unlawful payment of dividends or stock purchases or redemptions, or (4) any transaction from which the director derived an improper personal benefit. Our Certificate of Incorporation provides that no director will be liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation on liability is not permitted under the DGCL, as now in effect or as amended. The certificate of incorporation of Phillips 66 Company has similar provisions with respect to its directors.
Under Delaware law, a corporation may indemnify any individual made a party or threatened to be made a party to any type of proceeding, other than an action by or in the right of the corporation, because he or she is or was an officer, director, employee or agent of the corporation or was serving at the request of the corporation as an officer, director, employee or agent of another corporation or entity against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such proceeding: (1) if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation; or (2) in the case of a criminal proceeding, if he or she had no reasonable cause to believe that his or her conduct was unlawful. A corporation may indemnify any individual made a party or threatened to be made a party to any threatened, pending or completed action or suit brought by or in the right of the corporation because he or she was an officer, director, employee or agent of the corporation, or is or was serving at the request of the corporation as an officer, director, employee or agent of another corporation or other entity, against expenses actually and reasonably incurred in connection with such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation; provided that such indemnification will be denied if the individual is found liable to the corporation unless, in such a case, the court determines the person is nonetheless entitled to indemnification for such expenses. A corporation must indemnify a present or former director or officer who successfully defends himself or herself in a proceeding to which he or she was a party because he or she was a director or officer of the corporation against expenses actually and reasonably incurred by him or her. Expenses incurred by an officer or director, or any employees or agents as deemed appropriate by the board of directors, in defending civil or criminal proceedings may be paid by the corporation in advance of the final disposition of such proceedings upon receipt of an undertaking by or on behalf of such director, officer, employee or agent to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. The Delaware law regarding indemnification and expense advancement is not exclusive of any other rights that may be granted by Phillips 66’s Certificate of Incorporation or By-Laws, a vote of stockholders or disinterested directors, agreement or otherwise.
Under the DGCL, termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that such person is prohibited from being indemnified.
Phillips 66’s Certificate of Incorporation and By-Laws provide that, to the fullest extent authorized or permitted by the DGCL, as now in effect or as amended, Phillips 66 will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person, or a person of whom he or she is the legal representative, is or was a director or officer of Phillips 66, or by reason of the fact that Phillips 66’s director or officer is or was serving, at Phillips 66’s request, as a director, officer, employee or agent of another corporation or of a partnership, joint
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venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by us.
Phillips 66 will indemnify such persons against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action if such person acted in good faith and in a manner reasonably believed to be in Phillips 66’s best interests and, with respect to any criminal proceeding, had no reason to believe their conduct was unlawful. A similar standard will be applicable in the case of derivative actions, except that indemnification will only extend to expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such actions, and court approval will be required before there can be any indemnification where the person seeking indemnification has been found liable to us. Any amendment of this provision will not reduce Phillips 66’s indemnification obligations relating to actions taken before an amendment. Phillips 66 Company’s By-Laws have similar provisions.
We maintain insurance policies that insure our directors and officers and those of our subsidiaries against certain liabilities they may incur in their capacity as directors and officers. The insurance provides coverage, subject to its terms and conditions, if Phillips 66 or Phillips 66 Company is unable (e.g., due to bankruptcy) or unwilling to indemnify the directors and officers for a covered wrongful act.
| Item 21. | Exhibits and Financial Statement Schedules |
(a) Exhibits
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(b) Financial Statement Schedules are omitted because they are either not required, are not applicable or because equivalent information has been incorporated herein by reference or included in the financial statements, the notes thereto or elsewhere herein.
(c) There are no reports, opinions or appraisals included herein.
| Item 22. | Undertakings |
(a) Each undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.
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Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the Securities Act of 1933 to any purchaser, if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of a registrant under the Securities Act to any purchaser in the initial distribution of the securities, each undersigned registrant undertakes that in a primary offering of securities of such undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, such undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of such undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by such undersigned registrant;
(iii) the portion of any other free writing prospectus relating to the offering containing material information about such undersigned registrant or its securities provided by or on behalf of such undersigned registrant; and
(iv) any other communication that is an offer in the offering made by such undersigned registrant to the purchaser.
(b) Each undersigned registrant hereby further undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions or otherwise,
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each registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of such registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, such registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d) Each undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(e) Each undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on February 22, 2023.
| Phillips 66 Company | ||
| By: | /s/ Kevin J. Mitchell | |
| Kevin J. Mitchell Executive Vice President and Chief Financial Officer | ||
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Each person whose signature appears below appoints Kevin J. Mitchell, Vanessa Allen Sutherland and Jenarae N. Garland, and each of them, severally, as his or her true and lawful attorney or attorneys-in-fact and agent or agents, each of whom shall be authorized to act with or without the other, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead in his or her capacity as a director or officer or both, as the case may be, of Phillips 66 Company, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and all documents or instruments necessary or appropriate to enable Phillips 66 Company to comply with the Securities Act of 1933, as amended, and to file the same with the Securities and Exchange Commission, with full power and authority to each of said attorneys-in-fact and agents to do and perform in the name and on behalf of each such director or officer, or both, as the case may be, each and every act whatsoever that is necessary, appropriate or advisable in connection with any or all of the above-described matters and to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ Mark E. Lashier Mark E. Lashier |
President and Chief Executive Officer (Principal executive officer) |
February 22, 2023 | ||
| /s/ Kevin J. Mitchell Kevin J. Mitchell |
Executive Vice President and Chief Financial Officer (Principal financial officer) |
February 22, 2023 | ||
| /s/ J. Scott Pruitt J. Scott Pruitt |
Vice President and Controller (Principal accounting officer) |
February 22, 2023 | ||
| /s/ Vanessa Allen Sutherland Vanessa Allen Sutherland |
Director |
February 22, 2023 | ||
| /s/ Sam A. Farace, II Sam A. Farace, II |
Director |
February 22, 2023 | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on February 22, 2023.
| Phillips 66 | ||
| By: | /s/ Kevin J. Mitchell | |
| Kevin J. Mitchell Executive Vice President and Chief Financial Officer | ||
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Each person whose signature appears below appoints Kevin J. Mitchell, Vanessa Allen Sutherland and Jenarae N. Garland, and each of them, severally, as his or her true and lawful attorney or attorneys-in-fact and agent or agents, each of whom shall be authorized to act with or without the other, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead in his or her capacity as a director or officer or both, as the case may be, of Phillips 66, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and all documents or instruments necessary or appropriate to enable Phillips 66 to comply with the Securities Act of 1933, as amended, and to file the same with the Securities and Exchange Commission, with full power and authority to each of said attorneys-in-fact and agents to do and perform in the name and on behalf of each such director or officer, or both, as the case may be, each and every act whatsoever that is necessary, appropriate or advisable in connection with any or all of the above-described matters and to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ Mark E. Lashier Mark E. Lashier |
President and Chief Executive Officer, Director (Principal executive officer) |
February 22, 2023 | ||
| /s/ Kevin J. Mitchell Kevin J. Mitchell |
Executive Vice President and Chief Financial Officer (Principal financial officer) |
February 22, 2023 | ||
| /s/ J. Scott Pruitt J. Scott Pruitt |
Vice President and Controller (Principal accounting officer) |
February 22, 2023 | ||
| /s/ Gary K. Adams Gary K. Adams |
Director |
February 22, 2023 | ||
| /s/ Julie L. Bushman Julie L. Bushman |
Director |
February 22, 2023 | ||
| /s/ Lisa A. Davis Lisa A. Davis |
Director |
February 22, 2023 | ||
| /s/ Greg C. Garland Greg C. Garland |
Director |
February 22, 2023 | ||
| /s/ Gregory J. Hayes Gregory J. Hayes |
Director |
February 22, 2023 | ||
| /s/ Charles M. Holley Charles M. Holley |
Director |
February 22, 2023 | ||
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| /s/ John E. Lowe John E. Lowe |
Director |
February 22, 2023 | ||
| /s/ Denise L. Ramos Denise L. Ramos |
Director |
February 22, 2023 | ||
| /s/ Denise R. Singleton Denise R. Singleton |
Director |
February 22, 2023 | ||
| /s/ Douglas T. Terreson Douglas T. Terreson |
Director |
February 22, 2023 | ||
| /s/ Glenn F. Tilton Glenn F. Tilton |
Director |
February 22, 2023 | ||
| /s/ Marna C. Whittington Marna C. Whittington |
Director |
February 22, 2023 | ||
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Exhibit 3.3
CERTIFICATE OF INCORPORATION
OF
PHILLIPS 66 COMPANY
I, the undersigned, the purpose of incorporating and organizing a corporation under the General Corporation Law of the State of Delaware, do hereby execute this Certificate of Incorporation and do hereby certify as follows:
ARTICLE I
The name of the corporation (which is hereinafter referred to as the “Corporation”) is:
Phillips 66 Company
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is to be located at 2711 Centerville Road, Suite 400, in the City of Wilmington, County of New Castle, 19808 and its registered agent at such address is Corporation Service Company.
ARTICLE III
The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized and incorporated under the General Corporation Law of the State of Delaware.
ARTICLE IV
Section 1. The Corporation shall be authorized to issue 100 shares of capital stock, par value $0.01. All such shares are of one class and are shares of Common Stock.
Section 2. Except as otherwise provided by law, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes. Each share of Common Stock shall have one vote, and the Common Stock shall vote together as a single class.
ARTICLE V
Unless and except to the extent that the By-Laws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.
ARTICLE VI
In furtherance and not in limitation of the powers conferred by law, the Board of Directors of the Corporation (the “Board”) is expressly authorized and empowered to make, alter and repeal the By-Laws of the Corporation by a majority vote at any regular or special meeting of the Board or by written consent, subject to the power of the stockholders of the Corporation to alter or repeal any By-Laws made by the Board.
ARTICLE VII
The Corporation reserves the right at any time from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and any other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article.
ARTICLE VIII
Section I. Elimination of Certain Liability of Directors. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended.
Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a director of the Corporation existing hereunder with respect to any act or omission occurring prior to such repeal or modification.
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, to the fullest extent permitted by law, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, amounts paid or to be paid in settlement, and excise taxes or penalties arising under the Employee Retirement Income Security Act of 1974) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in paragraph (b) hereof, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board. The right to indemnification conferred in this Section shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final
disposition: provided, however, that, if the General Corporation Law of the State of Delaware requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section or otherwise. The Corporation may, by action of the Board, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of this Section is not paid in full by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the Corporation (including its Board, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, By-law, agreement, vote of stockholders or disinterested directors or otherwise.
(c) Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware.
ARTICLE IX
The name and mailing address of the incorporator is Nathan P. Murphy, c/o 600 North Dairy Ashford, Houston, Texas 77079.
IN WITNESS WHEREOF, I, the undersigned, being the incorporator hereinbefore named, do hereby further certify that the facts hereinabove stated are truly set forth and, accordingly, I have hereunto set my hand this 10th day of November, 2011.
| /s/ Nathan P. Murphy |
| Nathan P. Murphy |
| Incorporator |
Exhibit 3.4
CERTIFICATE OF AMENDMENT OF
THE CERTIFICATE OF INCORPORATION OF
PHILLIPS 66 COMPANY
Pursuant to Section 242 of the General Corporation Law of the State of Delaware, Phillips 66 Company, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation duly adopted resolutions proposing and declaring advisable the following amendment to the certificate of incorporation of the Corporation:
Article IV, Section I is hereby deleted and replaced with the following text:
“The Corporation shall be authorized to issue 10,000 shares of capital stock, par value $0.01. All such shares are of one class and are shares of Common Stock.”
SECOND: That by action of written consent, the sole stockholder of the Corporation consented to the adoption of such amendment.
THIRD: That said amendment was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware.
[signature appears on next page]
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by C. Doug Johnson this 5th day of April, 2012.
| PHILLIPS 66 COMPANY | ||
| By: | /s/ C. Doug Johnson | |
| Name: | C. Doug Johnson | |
| Title: | Vice President | |
Exhibit 3.5
BY-LAWS
OF
PHILLIPS 66 COMPANY
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. Phillips 66 Company (the “Corporation”) shall have and continuously maintain in the State of Delaware, a registered office and a registered agent whose business office is identical with the Corporation’s registered office.
SECTION 2. OTHER OFFICES. The Corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time select or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the election of directors, and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting. If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next succeeding business day. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the meeting.
SECTION 2. SPECIAL MEETINGS. Unless otherwise provided by law or by the Certificate of Incorporation of the Corporation, special meetings of the stockholders for any purpose or purposes may be called by the President or the Secretary, or by resolution of the Board of Directors.
SECTION 3. VOTING. Each stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation of the Corporation and these By-Laws may vote in person or by proxy, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware.
SECTION 4. QUORUM. Except as otherwise required by law, by the Certificate of Incorporation of the Corporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding shares constituting a majority of the voting power of the Corporation shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted that might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof.
SECTION 5. NOTICE OF MEETINGS. Written notice, stating the place, date and time of the annual meeting or special meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat, at his or her address as it appears on the records of the Corporation, not less than ten (10) nor more than sixty (60) days before the date of such meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.
SECTION 6. ACTION WITHOUT MEETING. Unless otherwise provided by the Certificate of Incorporation of the Corporation, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM. The business and affairs of the Corporation shall be managed under the direction of a Board of Directors which shall consist of not less than two persons. The exact number of directors may be fixed from time to time by resolutions adopted by a majority of the entire Board of Directors. Directors shall be elected at the annual meeting of stockholders and each director shall be elected to serve until his or her successor shall be elected and shall qualify. A director need not be a stockholder.
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SECTION 2. RESIGNATIONS. Any director may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or the Secretary. The acceptance of a resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. If the office of any director becomes vacant, the remaining directors in the office, though less than a quorum, by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his or her successor shall be duly chosen. If the office of any director becomes vacant and there are no remaining directors, the stockholders, by the affirmative vote of the holders of shares constituting a majority of the voting power of the Corporation, at a special meeting called for such purpose, may appoint any qualified person to fill such vacancy.
SECTION 4. REMOVAL. Except as hereinafter provided, any director or directors may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of the voting power entitled to vote for the election of directors, at an annual meeting or a special meeting called for the purpose, and the vacancy thus created may be filled, at such meeting, by the affirmative vote of holders of shares constituting a majority of the voting power of the Corporation.
SECTION 5. MEETINGS. The newly elected directors may hold their first meeting for the purpose of organization and the transaction of business, if a quorum be present, immediately after the annual meeting of the stockholders; or the time and place of such meeting may be fixed by consent of all the Directors.
Regular meetings of the Board of Directors may be held without notice at such places and times as shall be determined from time to time by resolution of the Board of Directors.
Special meetings of the Board of Directors may be called by any director, the President, or by the Secretary on the written request of any director, on at least one day’s notice to each director (except that notice to any director may be waived in writing by such director) and shall be held at such place or places as may be determined by the Board of Directors, or as shall be stated in the call of the meeting.
Unless otherwise restricted by the Certificate of Incorporation of the Corporation or these By-Laws, members of the Board of Directors may participate in any meeting of the Board of Directors by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
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SECTION 7. QUORUM. A majority of the Directors shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned. The vote of the majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless the Certificate of Incorporation of the Corporation or these By-Laws shall require the vote of a greater number.
SECTION 8. COMPENSATION. Directors shall not receive any stated salary for their services as directors or as members of committees, but by resolution of the Board of Directors a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefore.
SECTION 9. ACTION WITHOUT MEETING. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if a written consent thereto is signed by all members of the Board of Directors or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board of Directors or such committee.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a President, one or more Vice Presidents, a Treasurer and a Secretary, all of whom shall be elected by the Board of Directors and shall hold office until their successors are duly elected and qualified. In addition, the Board of Directors may elect such Assistant Secretaries and Assistant Treasurers as they may deem proper. The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.
SECTION 2. PRESIDENT. The President shall be the Chief Operating Officer of the Corporation. He or she shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. The President shall have the power to execute bonds, mortgages and other contracts on behalf of the Corporation, and to cause the seal to be affixed to any instrument requiring it, and when so affixed the seal shall be attested to by the signature of the Secretary or an Assistant Secretary.
SECTION 3. VICE PRESIDENTS. Each Vice President shall have such powers and shall perform such duties as shall be assigned to him or her by the Board of Directors or the President.
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SECTION 4. TREASURER. The Treasurer shall have the custody of the corporate funds and securities of the Corporation and shall keep full and accurate account of receipts and disbursements in books belonging to the Corporation. He or she shall deposit all moneys and other valuables in the name and to the credit of the Corporation in such depositaries as may be designated by the Board of Directors. He or she shall disburse the funds of the Corporation as may be ordered by the Board of Directors, the Chairman of the Board, or the President, taking proper vouchers for such disbursements. He or she shall render to the Chairman of the Board, the President and Board of Directors at the regular meetings of the Board of Directors, or whenever they may request it, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, he or she shall give the Corporation a bond for the faithful discharge of his or her duties in such amount and with such surety as the Board of Directors shall prescribe.
SECTION 5. SECRETARY. The Secretary shall give, or cause to be given, notice of all meetings of stockholders and of the Board of Directors and all other notices required by law or by these By-Laws, and in case of his or her absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by the Chairman of the Board or the President, or by the Board of Directors, upon whose request the meeting is called as provided in these By-Laws. He or she shall record all the proceedings of the meetings of the Board of Directors, any committees thereof and the stockholders of the Corporation in a book to be kept for that purpose, and shall perform such other duties as may be assigned to him or her by the Board of Directors or the President. He or she shall have the custody of the seal of the Corporation and shall affix the same to all instruments requiring it, when authorized by the Board of Directors or the President, and attest to the same.
SECTION 7. GENERAL TAX OFFICER. The General Tax Officer shall prepare, execute and deliver all instruments and documents necessary or desirable in connection with the tax liabilities of the Corporation including tax returns of any kind to be filed with any federal, state, local or foreign government. He or she shall represent the Corporation in connection with administrative inquiries, hearings, protests and audits relating to tax matters and compromise, settle or otherwise resolve all tax claims arising therefrom. He or she shall request and receive from governmental authorities such rulings and determinations respecting tax matters affecting the Corporation as deemed to be in the best interests of the Corporation and shall perform such other duties as may be assigned to him or her by the Board of Directors or the President.
SECTION 8. ASSISTANT TREASURERS, ASSISTANT SECRETARIES, TAX ADMINISTRATION OFFICER AND ASSISTANT TAX ADMINISTRATIVE OFFICER. Assistant Treasurers, Assistant Secretaries, a Tax Administration Officer and Assistant Tax Administration Officers, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the Board of Directors and the President.
SECTION 9. INDEMNIFICATION. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he is or was a director, officer or employee of the Corporation or is or was serving at the
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request of the Corporation as a director, officer or employee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer or employee or in any other capacity while serving as a director, officer or employee, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, Employee Retirement Income Security Act of 1974 excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except as provided in this Section with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Section shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Section or otherwise. The rights to indemnification and to the advancement of expenses conferred in this Section shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer or employee and shall inure to the benefit of the indemnitee’s heirs, executors and administrators.
If a claim under this Section is not paid in full by the Corporation within sixty (60) days after written claim had been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to
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have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Section or otherwise shall be on the Corporation.
The rights to indemnification and to the advancement of expenses conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation, By-Laws, agreement, vote of stockholders or disinterested directors or otherwise.
The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and rights to be paid by the Corporation the expenses incurred in defending any proceeding in advance of its final disposition, to any agent of the Corporation or to any agent of another corporation or of a partnership, joint venture, trust or other enterprise, including any employee benefit plan, serving as such agent at the request of the Corporation, to the fullest extent of the provisions of this Section with respect to the indemnification and advancement of expenses of directors, officers and employees of the Corporation.
ARTICLE V
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK. A certificate of stock shall be issued to each stockholder certifying the number of shares owned by such stockholder in the Corporation. Certificates of stock of the Corporation shall be of such form and device as the Board of Directors may from time to time determine.
SECTION 2. LOST CERTIFICATES. A new certificate of stock may be issued in the place of any certificate theretofore issued by the Corporation, alleged to have been lost or destroyed, and the Board of Directors may, in its discretion, require the owner of the lost or destroyed certificate, or such owner’s legal representatives, to give the Corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the Corporation against any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate.
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SECTION 3. TRANSFER OF SHARES. The shares of stock of the Corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the Corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the Board of Directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.
SECTION 4. STOCKHOLDERS RECORD DATE. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty nor less than ten days before the date of such meeting; (2) in the case of determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall not be more than ten days from the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall not be more than sixty days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (2) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting when no prior action of the Board of Directors is required by law, shall be the first day on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (3) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 5. DIVIDENDS. Subject to the provisions of the Certificate of Incorporation of the Corporation, the Board of Directors may, out of funds legally available therefore at any regular or special meeting, declare dividends upon stock of the Corporation as and when they deem appropriate. Before declaring any dividend there may be set apart out of any funds of the Corporation available for dividends, such sum or sums as the Board of Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the Board of Directors shall deem conducive to the interests of the Corporation.
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SECTION 6. SEAL. The corporate seal of the Corporation shall be in such form as shall be determined by resolution of the Board of Directors. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise imprinted upon the subject document or paper.
SECTION 7. FISCAL YEAR. The fiscal year of the Corporation shall be determined by resolution of the Board of Directors.
SECTION 8. NOTICE AND WAIVER OF NOTICE. Whenever any notice is required to be given under these By-Laws, personal notice is not required unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his or her address as it appears on the records of the Corporation, and such notice shall be deemed to have been given on the day of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by law. Whenever any notice is required to be given under the provisions of any law, or under the provisions of the Certificate of Incorporation of the Corporation or of these By-Laws, a waiver thereof, in writing and signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such required notice.
ARTICLE VI
AMENDMENTS
These By-Laws may be altered, amended or repealed at any annual meeting of the stockholders (or at any special meeting thereof if notice of such proposed alteration, amendment or repeal to be considered is contained in the notice of such special meeting) by the affirmative vote of the holders of shares constituting a majority of the voting power of the Corporation. Except as otherwise provided in the Certificate of Incorporation of the Corporation, the Board of Directors may by majority vote of those present at any meeting at which a quorum is present alter, amend or repeal these By-Laws, or enact such other By-Laws as in their judgment may be advisable for the regulation and conduct of the affairs of the Corporation.
* * * * * * * *
Adopted on: November 10, 2011
Last amended as of : November 10, 2011
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Exhibit 5.1
February 22, 2023
Phillips 66 Company
2331 CityWest Blvd.
Houston, Texas 77042
Ladies and Gentlemen:
We have acted as counsel to Phillips 66, a Delaware corporation (“Phillips 66”), and Phillips 66 Company, a Delaware corporation and wholly owned subsidiary of Phillips 66 (“Phillips 66 Company”), in connection with the preparation of a Registration Statement on Form S-4 (the “Registration Statement”) to be filed on the date hereof by Phillips 66 Company and Phillips 66 with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to offers to exchange (the “Exchange Offers”) (i) an aggregate principal amount of up to $276,764,000 of Phillips 66 Company’s 2.450% Senior Notes due 2024 (the “2024 Exchange Notes”), which will have been registered under the Act, for an equal principal amount of Phillips 66 Company’s outstanding 2.450% Senior Notes due 2024 (the “2024 Original Notes”), (ii) an aggregate principal amount of up to $440,510,000 of Phillips 66 Company’s 3.605% Senior Notes due 2025 (the “2025 Exchange Notes”), which will have been registered under the Act, for an equal principal amount of Phillips 66 Company’s outstanding 3.605% Senior Notes due 2025 (the “2025 Original Notes”), (iii) an aggregate principal amount of up to $457,790,000 of Phillips 66 Company’s 3.550% Senior Notes due 2026 (the “2026 Exchange Notes”), which will have been registered under the Act, for an equal principal amount of Phillips 66 Company’s outstanding 3.550% Senior Notes due 2026 (the “2026 Original Notes”), (iv) an aggregate principal amount of up to $427,239,000 of Phillips 66 Company’s 3.750% Senior Notes due 2028 (the “2028 Exchange Notes”), which will have been registered under the Act, for an equal principal amount of Phillips 66 Company’s outstanding 3.750% Senior Notes due 2028 (the “2028 Original Notes”), (v) an aggregate principal amount of up to $570,040,000 of Phillips 66 Company’s 3.150% Senior Notes due 2029 (the “2029 Exchange Notes”), which will have been registered under the Act, for an equal principal amount of Phillips 66 Company’s outstanding 3.150% Senior Notes due 2029 (the “2029 Original Notes”), (vi) an aggregate principal amount of up to $441,900,000 of Phillips 66 Company’s 4.680% Senior Notes due 2045 (the “2045 Exchange Notes”), which will have been registered under the Act, for an equal principal amount of Phillips 66 Company’s outstanding 4.680% Senior Notes due 2045 (the “2045 Original Notes”), and (vii) an aggregate principal amount of up to $605,161,000 of Phillips 66 Company’s 4.900% Senior Notes due 2046 (the “2046 Exchange Notes” and together with the 2024 Exchange Notes, the 2025 Exchange Notes, the 2026 Exchange Notes, the 2028 Exchange Notes, the 2029 Exchange Notes and the 2045 Exchange Notes, the “Exchange Notes”), which will have been registered under the Act, for an equal principal amount of Phillips 66 Company’s outstanding 4.900% Senior Notes due 2046 (the “2046 Original Notes” and together with the 2024 Original Notes, the 2025 Original Notes, the 2026 Original Notes, the 2028 Original Notes, the 2029 Original Notes and the 2045 Original Notes, the “Original Notes”). At your request, this opinion is being furnished to you for filing as Exhibit 5.1 to the Registration Statement.
| Bracewell LLP | T: +1.713.223.2300 F: +1.800.404.3970 711 Louisiana Street, Suite 2300, Houston, Texas 77002-2770 bracewell.com |
AUSTIN CONNECTICUT DALLAS DUBAI HOUSTON LONDON NEW YORK SAN ANTONIO SEATTLE WASHINGTON, DC
Phillips 66 Company
February 22, 2023
Page 2
The Original Notes were, and the Exchange Notes will be, issued under the Indenture, dated as of May 5, 2022 (the “Indenture”), among Phillips 66 Company, as issuer, Phillips 66, as guarantor, and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”). The Exchange Notes will be unconditionally and irrevocably guaranteed (collectively, the “Guarantees”) as to payment of principal, premium, if any, and interest by Phillips 66 pursuant to the Indenture.
We have examined originals, or copies certified or otherwise identified, of (i) the Registration Statement and the form of prospectus contained therein; (ii) the Indenture; (iii) a specimen of the 2024 Exchange Notes; (iv) a specimen of the 2025 Exchange Notes; (v) a specimen of the 2026 Exchange Notes; (vi) a specimen of the 2028 Exchange Notes; (vii) a specimen of the 2029 Exchange Notes; (viii) a specimen of the 2045 Exchange Notes; (ix) a specimen of the 2046 Exchange Notes; (x) corporate records of Phillips 66 Company and Phillips 66, including minute books of Phillips 66 Company and Phillips 66 and certain resolutions of the Boards of Directors, or committees thereof, of Phillips 66 Company and Phillips 66, as furnished to us by them; and (xi) such other instruments, documents and records as we have deemed necessary and relevant for the purposes hereof. We have relied upon certificates of officers of Phillips 66 Company and Phillips 66 and of public officials as to certain matters of fact relating to this opinion and have made such investigations of law as we have deemed necessary and relevant as a basis hereof. In such examinations, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents, certificates and records submitted to us as originals, the conformity to authentic original documents, certificates and records of all documents, certificates and records submitted to us as copies, and the truthfulness of all statements of fact contained therein. In making our examination of executed documents or documents to be executed, we have assumed that they constitute or will constitute valid, binding and enforceable obligations of all parties thereto other than Phillips 66 Company and Phillips 66. We have also assumed that (i) the Indenture has been duly authorized, executed and delivered by the Trustee; (ii) the Exchange Notes will conform to the specimens thereof examined by us; and (iii) the Trustee’s certificates of authentication of the Exchange Notes will be manually signed by one of the Trustee’s authorized officers.
In connection with this opinion, we have assumed that:
| (a) | the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective under the Act and such effectiveness shall not have been terminated or rescinded; |
| (b) | the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended; |
| (c) | the Original Notes have been validly tendered and not withdrawn and have been received and accepted by Phillips 66 Company in accordance with the terms of the Exchange Offers as set forth in the Registration Statement; and |
AUSTIN CONNECTICUT DALLAS DUBAI HOUSTON LONDON NEW YORK SAN ANTONIO SEATTLE WASHINGTON, DC
Phillips 66 Company
February 22, 2023
Page 3
| (d) | the Exchange Notes have been duly executed, authenticated, issued and delivered upon consummation of the Exchange Offers in accordance with the terms of the Indenture and the Exchange Offers as set forth in the Registration Statement. |
On the basis of the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that the Exchange Notes issued in exchange for Original Notes in accordance with the terms of the Exchange Offers as set forth in the Registration Statement will constitute legal, valid and binding obligations of Phillips 66 Company, enforceable against Phillips 66 Company in accordance with their terms, and the Guarantees thereof will constitute legal, valid and binding obligations of Phillips 66, enforceable against Phillips 66 in accordance with their terms.
The foregoing opinion is based on and is limited to the General Corporation Law of the State of Delaware and the relevant contract law of the State of New York. We express no opinion as to any other laws, statutes, regulations or ordinances, including federal and state securities (or “blue sky”) laws. We are not admitted to practice law in the State of Delaware.
Our opinion that the Exchange Notes and the Guarantees are legal, valid and binding obligations of Phillips 66 Company or Phillips 66 is subject to (i) applicable bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or other similar laws relating to or affecting the rights of creditors generally, (ii) general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief and limitation of rights of acceleration, regardless of whether such enforceability is considered in a proceeding in equity or at law and (iii) limitations of rights to indemnification, exculpation and contribution which may be limited by applicable law or equitable principles. We also express no opinion regarding the effectiveness of any waiver of stay, extension or usury laws or of unknown future rights, and we express no opinion regarding severability provisions. We express no opinion as to the validity, binding effect or enforceability of any provisions of the Indenture, the Exchange Notes or the Guarantees that require or relate to the payment of additional interest at a rate or in an amount that a court would determine in the circumstances under applicable law to be commercially unreasonable or a penalty or a forfeiture. Further, we express no opinion with respect to the enforceability of provisions in the Exchange Notes or the Indenture with respect to waiver, delay, extension or omission of notice of enforcement of rights or remedies or waivers of defenses or waivers of benefits of stay, extension, moratorium, redemption, statutes of limitations or other nonwaivable benefits provided by operation of law. In addition, the enforceability of any exculpation, indemnification or contribution provisions contained in the Indenture may be limited by applicable law or public policy.
In connection with the foregoing opinion, we have also assumed that at the time of the issuance and delivery of the Exchange Notes there will not have occurred any change in law affecting the validity, binding character or enforceability of the Exchange Notes or the Guarantees and that the issuance
AUSTIN CONNECTICUT DALLAS DUBAI HOUSTON LONDON NEW YORK SAN ANTONIO SEATTLE WASHINGTON, DC
Phillips 66 Company
February 22, 2023
Page 4
and delivery of the Exchange Notes and the Guarantees, all of the terms of the Exchange Notes and the Guarantees and the performance by Phillips 66 Company and Phillips 66 of their respective obligations thereunder will comply with applicable law and with each requirement or restriction imposed by any court or governmental body having jurisdiction over Phillips 66 Company or Phillips 66 and will not result in a default under or a breach of any agreement or instrument then binding upon Phillips 66 Company or Phillips 66.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “Validity of the Securities” in the prospectus forming a part of the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein.
| Very truly yours, |
| /s/ Bracewell LLP |
AUSTIN CONNECTICUT DALLAS DUBAI HOUSTON LONDON NEW YORK SAN ANTONIO SEATTLE WASHINGTON, DC
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form S-4) and related Prospectus of Phillips 66 and Phillips 66 Company for the registration of $3,219,404,000 of senior notes and to the incorporation by reference therein of our reports dated February 22, 2023, with respect to the consolidated financial statements of Phillips 66 and the effectiveness of internal control over financial reporting of Phillips 66, included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
| /s/ Ernst & Young LLP |
Houston, Texas
February 22, 2023
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-4 of our report dated February 17, 2023, relating to the financial statements of DCP Midstream, LP, appearing in the Annual Report on Form 10-K of Phillips 66 for the year ended December 31, 2022. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
| /s/ Deloitte & Touche LLP |
| Denver, Colorado |
| February 22, 2023 |
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
| 800 Nicollet Mall Minneapolis, Minnesota |
55402 | |
| (Address of principal executive offices) | (Zip Code) |
Alejandro Hoyos
U.S. Bank Trust Company, National Association
8 Greenway Plaza, Suite 1100
Houston, TX 77046-0892
(713) 212-7576
(Name, address and telephone number of agent for service)
Phillips 66 Company
Phillips 66
(Issuer with respect to the Securities)
| Delaware | 37-1652702 | |
| Delaware | 45-3779385 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 2331 CityWest Blvd. Houston, TX |
77042 | |
| (Address of Principal Executive Offices) | (Zip Code) |
2.450% Senior Notes due 2024
3.605% Senior Notes due 2025
3.550% Senior Notes due 2026
3.750% Senior Notes due 2028
3.150% Senior Notes due 2029
4.680% Senior Notes due 2045
4.900% Senior Notes due 2046
Guarantees of 2.450% Senior Notes due 2024
Guarantees of 3.605% Senior Notes due 2025
Guarantees of 3.550% Senior Notes due 2026
Guarantees of 3.750% Senior Notes due 2028
Guarantees of 3.150% Senior Notes due 2029
Guarantees of 4.680% Senior Notes due 2045
Guarantees of 4.900% Senior Notes due 2046
(Title of the Indenture Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee, attached as Exhibit 1. |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the authorization of the Trustee to exercise corporate trust powers, attached as Exhibit 2. |
| 4. | A copy of the existing bylaws of the Trustee, attached as Exhibit 3. |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 5. |
| 7. | Report of Condition of the Trustee as of December 31, 2022, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 6. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Houston, Texas on the 31st of January, 2023.
| By: | /s/ Alejandro Hoyos | |
| Alejandro Hoyos | ||
| Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the “Association”) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:
FIRST. The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND. The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD. The board of directors of the Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association or of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the date of purchase, (ii) the date the person became a director, or (iii) the date of that person’s most recent election to the board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number of directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a director’s term, the director shall continue to serve until his or her successor is elected and qualified or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the Association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
- 1 -
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state in which the Association is located, on the next following banking day. If no election is held on the day fixed or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance notice of the meeting shall be given to the shareholders by first-class mail.
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the purposes is to remove him or her is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States. The Association shall have only one class of capital stock.
No holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix.
Transfers of the Association’s stock are subject to the prior written approval of a federal depository institution regulatory agency. If no other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless otherwise specified in the Articles of Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
- 2 -
Unless otherwise specified in the Articles of Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
The Association, at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders. Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this Association and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors’ and shareholders’ meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the Bylaws.
The board of directors shall have the power to:
| (1) | Define the duties of the officers, employees, and agents of the Association. |
| (2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the Association. |
| (3) | Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
| (4) | Dismiss officers and employees. |
| (5) | Require bonds from officers and employees and to fix the penalty thereof. |
| (6) | Ratify written policies authorized by the Association’s management or committees of the board. |
| (7) | Regulate the manner any increase or decrease of the capital of the Association shall be made; provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
- 3 -
| (8) | Manage and administer the business and affairs of the Association. |
| (9) | Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs of the Association. |
| (10) | Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders. |
| (11) | Make contracts. |
| (12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power to change the location of the main office to any authorized branch within the limits of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits. The board of directors shall have the power to establish or change the location of any office or offices of the Association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock of the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to each shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association’s activities and services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association’s board of directors may propose one or more amendments to the Articles of Association for submission to the shareholders.
- 4 -
In witness whereof, we have hereunto set our hands this 11th of June, 1997.
| /s/ Jeffrey T. Grubb |
| Jeffrey T. Grubb |
| /s/ Robert D. Sznewajs |
| Robert D. Sznewajs |
| /s/ Dwight V. Board |
| Dwight V. Board |
| /s/ P. K. Chatterjee |
| P. K. Chatterjee |
| /s/ Robert Lane |
| Robert Lane |
Exhibit 2
|
Office of the Comptroller of the Currency | |
| Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE AND FIDUCIARY POWERS
I, Michael J. Hsu, Acting Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank Trust Company, National Association,” Portland, Oregon (Charter No. 23412), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking and exercise fiduciary powers on the date of this certificate.
IN TESTIMONY WHEREOF, today, January 6, 2023, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
2023-00337-C
Exhibit 3
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work a forfeiture or dissolution of the Association.
Section 1.2. Special Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least ten percent of the outstanding stock.
Every such special meeting, unless otherwise provided by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting and any adjournments of such meeting and shall be filed with the records of the meeting.
Section 1.5. Record Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors. The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at all annual and special meetings of shareholders.
Section 1.8. Waiver and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified, or until their earlier resignation or removal.
Section 2.3. Powers. In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles of Association, the Bylaws and by law.
Section 2.4. Number. As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than twenty-five members, unless the OCC has exempted the Association from the twenty-five- member limit. The Board shall consist of a number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof, in accordance with the Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the Board
by a majority vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors, and fill any vacancy so created in the Board; provided that the Board may increase the number of directors only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up to four directors, when the number of directors last elected by shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control of the Association in each case as required by applicable law. Each director shall own such qualifying equity interest in his or her own right and meet any minimum threshold ownership required by applicable law.
Section 2.5. Organization Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of those directors present and voting shall be the act of the Board.
Section 2.9. Written Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies. When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular meeting of the Board, or at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of affiliated organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board, provided, that the Board’s responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits, the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding company that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1) Must not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s fiduciary activities; and
(2) Must consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control the fiduciary activities of the Association.
Section 3.3. Executive Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the Board is not meeting.
Section 3.4. Trust Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such committee shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings, Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of the advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory board of directors or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred upon or assigned by the Board.
Section 4.2. President. The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
Section 4.3. Vice President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the Board in the absence of both the Chairman and President.
Section 4.4. Secretary. The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section 4.5. Other Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from time to time may appear to the Board, the Chairman, the President or such other officer to be required or desirable to transact the business of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other authorized officer. Any person may hold two offices.
Section 4.6. Tenure of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the Board or authorized officer to discharge any officer at any time.
ARTICLE V
Stock
Section 5.1. The Board may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President, Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall, in proportion to such person’s shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers, voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements, assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged, endorsed, verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association, or such employee or agent as may be designated from time to time by the Board by resolution, or by the Chairman or the President by written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association. The provisions of this section are supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. Records. The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders, the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and discharged.
Section 7.4. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under law.
Section 7.5. Notice. Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e- mail, in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive such notice, or such other personal data, as may appear on the records of the Association.
Except where specified otherwise in these Bylaws, prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145 of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined at 12 U.S.C. § 1813(u).
Section 8.2. Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be in accordance with Delaware General Corporation Law and consistent with safe and sound banking practices.
ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed, at any regular or special meeting of the Board.
Section 9.2. A copy of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first day of December following.
Section 10.2. Governing Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 5
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: January 31, 2023
| By: | /s/ Alejandro Hoyos | |||
| Alejandro Hoyos | ||||
| Vice President | ||||
Exhibit 6
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 12/31/2022
($000’s)
| 12/31/2022 | ||||
| Assets |
||||
| Cash and Balances Due From |
$ | 741,758 | ||
| Depository Institutions |
||||
| Securities |
4,322 | |||
| Federal Funds |
0 | |||
| Loans & Lease Financing Receivables |
0 | |||
| Fixed Assets |
2,186 | |||
| Intangible Assets |
581,108 | |||
| Other Assets |
163,734 | |||
|
|
|
|||
| Total Assets |
$ | 1,493,108 | ||
| Liabilities |
||||
| Deposits |
$ | 0 | ||
| Fed Funds |
0 | |||
| Treasury Demand Notes |
0 | |||
| Trading Liabilities |
0 | |||
| Other Borrowed Money |
0 | |||
| Acceptances |
0 | |||
| Subordinated Notes and Debentures |
0 | |||
| Other Liabilities |
107,167 | |||
|
|
|
|||
| Total Liabilities |
$ | 107,167 | ||
| Equity |
||||
| Common and Preferred Stock |
200 | |||
| Surplus |
1,171,635 | |||
| Undivided Profits |
214,106 | |||
| Minority Interest in Subsidiaries |
0 | |||
|
|
|
|||
| Total Equity Capital |
$ | 1,385,941 | ||
| Total Liabilities and Equity Capital |
$ | 1,493,108 | ||